Court File and Parties

COURT FILE NO.: FC-23-816 DATE: 2024/11/14

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

GIORGIA MIRRO ENEI Applicant – and – TAMARA JANICE ENEI (NEE DOVER) Respondent

Counsel: Paul Riley, for the Applicant Martin Kenny, for the Respondent

HEARD: Originally heard on April 18, 2024 and re-heard on October 7, 2024 before Justice Audet.

REASONS FOR DECISION

AUDET J.

[1] This is a motion for summary judgement on property issues brought by the Respondent, Tamara Janice Enei (“Ms. Enei”). More specifically, Ms. Enei seeks the following orders:

1- A finding that there are no genuine issues for trial with respect to the following claims brought by the Applicant in his Application:

a. An order for an unequal division of the parties' net family properties in favour of the Applicant;

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

c. A declaration that the Respondent has been unjustly enriched by the Applicant's contributions to the Respondent's assets, the remedy for which is 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.

2- An order fixing the equalization amount owing by the Applicant to the Respondent.

[2] The Applicant, Giorgio Mirro Enei (“Mr. Enei”) seeks the dismissal of the summary judgement motion. In addition, he brought his own motion seeking a long list of relief, which can be summarized as follows:

1- Orders allowing for the divorce to issue;

2- Exclusive possession of the matrimonial home;

3- An accounting of all assets owned by the Applicant anywhere in the world;

4- A long list of disclosure;

5- The return of the two dogs or, alternatively, an order for “shared custody” of the dogs;

6- A temporary variation of the interim spousal support order in place, based on an imputed income for the Applicant.

[3] For reasons set out in more detail below, Ms. Enei’s summary judgement motion is granted, except on the issues of Mr. Enei’s beneficial entitlement to certain investment accounts and equalization. Mr. Enei’s motion for the various relief set out above is dismissed, except for the severance of the divorce from the other issues in this case, and for disclosure (which I grant in part only).

BACKGROUND

[4] The following facts, relevant to the motions before me, are not disputed.

[5] The parties were married for 34 years and separated on February 16, 2023. They have three children together, who were born between 1991 and 1994, and who are all adults and living independently now.

[6] The parties’ marriage was a very traditional one in which Mr. Enei was the family’s main breadwinner and Ms. Enei’s primary focus was raising the parties’ three children, taking care of the home, and managing the household. Mr. Enei worked for the Federal Government for over 34 years. At the time he retired in 2021, he was a Senior Assistant Deputy Minister and Advisor for the Office of the Chief Science Advisor of Canada, earning employment income of over $250,000 per annum during the last two years. He worked hard and had a very successful career.

[7] At the time the parties married, Ms. Enei worked full-time in an office doing administrative work. After she gave birth to the parties’ first child in 1991, Ms. Enei remained at home for the most part, working part-time to supplement the household income when possible (for instance, by doing wedding dress alterations in the evenings). In 2007, Ms. Enei completed a bookkeeping course at Algonquin College. Thereafter, she worked part-time at a quilting store (a few hours per week), and for certain periods of time she worked (part-time) as a bookkeeper. However, she had to quit her job twice to care for the parties’ younger child who was suffering from mental health issues and, later, substance abuse. Ms. Enei worked hard at home to raise the children, care for and manage the household, and support her husband’s career.

[8] Together, the parties did very well and, after 34 years of marriage, had accumulated a combined net worth exceeding five million dollars.

[9] For almost the entirety of the parties’ marriage, Ms. Enei was solely 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 card and line of credit, and move money around as needed to cover the parties’ expenses. The only exception to this was the management of the parties’ various investments which was the primary (if not exclusive) responsibility of Mr. Enei. He would deposit his yearly bonusses in the parties’ joint Canadian Imperial Bank of Commerce (“CIBC”) savings account, and 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.

[10] During their marriage, the parties had one joint RBC chequing account, in which Mr. Enei’s pay was deposited. Although there is disagreement over whether Mr. Enei had a bank card to access this joint account, if he had one it is not disputed that he rarely, if ever, used it. Mr. Enei would rarely go shopping without Ms. Enei, and she would always take care of the payment. Mr. Enei’s yearly charges on the parties’ RBC Mastercard ranged between $1,863 (lowest) and $7,232 (highest) per year during the seven years leading up to the parties’ separation. I think it is fair to say that, except for managing the parties’ investments, Mr. Enei almost never touched the parties’ money. Ms. Enei would withdraw cash every month which she would hand out to Mr. Enei to pay for small day-to-day expenses, such as getting his hair cut or buying a coffee or pay for a restaurant outing. Otherwise, Mr. Enei paid his personal expenses with the use of a credit card, and Ms. Enei took care of paying the credit card on a monthly basis, and all of the family’s expenses.

[11] In addition to the parties’ joint RBC chequing account, the parties had one Canadian Tire (“CT”) Mastercard which was in Mr. Enei’s sole name, with Ms. Enei being a supplementary user with her own card. Much of the parties’ household and family expenses were paid with that credit card, which was paid off monthly. The parties also had a joint RBC line of credit.

[12] In managing the family finances, Ms. Enei maintained two accounts in her sole name, one personal savings account with RBC and one personal chequing account with TD Canada Trust (“TD”). Ms. Enei says that she opened her personal RBC account many years before the parties’ separation to set funds aside for significant expenditures such as vehicles and legal costs regarding claims brought against Mr. Enei at work. While the majority of household expenses were paid out of the joint RBC account, she also used her personal RBC account to cover the monthly home and car insurance costs.

[13] Ms. Enei says that she only ever had two personal TD accounts; one was opened when she was 16 and it was closed early in the parties’ marriage. She opened the second one on or about 2012, when she returned to work, so that she could qualify for a Visa credit card in her sole name and build her own credit separate from her husband. She deposited most of her part-time work income in her TD personal account and used her TD Visa to pay for business and personal expenses which would then be paid off with either her TD personal account or the parties’ joint RBC account. A separate TD Visa card was issued in one of the children’s names when she was attending school outside of the home, and Mr. Enei was also added as a supplementary card holder on that credit card some time before the parties’ separation (although I do not believe that he ever used it).

[14] Although Ms. Enei says that Mr. Enei “ought to have been aware” of the existence of Ms. Enei’s personal RBC and TD accounts, and of her personal TD Visa credit card, for the purpose of this motion only I accept Mr. Enei’s evidence that he was not.

[15] To summarize, it is not disputed that the parties did most of their family day-to-day banking at RBC, and had the following joint accounts:

• One RBC joint chequing account (in which Mr. Enei’s income was deposited and through which most of the family’s expenses were paid)
• One CT Mastercard (in Mr. Enei’s name but Ms. Enei had her own supplementary card and full access to this account. Many of the family’s expenses were paid with this Mastercard);
• One RBC joint line of credit (which was opened in 2016 to fund the construction of Mr. Enei’s wood shop, but which was used afterwards for other purposes).

[16] In addition, Ms. Enei had the following accounts in her sole name:

• One RBC personal savings account (which Ms. Enei says she used as a savings account which was then used to pay for major expenditures such vehicles, legal fees and also monthly car and home insurance);
• One TD personal chequing account (in which Ms. Enei deposited her part-time employment income and paid for business and personal expenses);
• One TD Visa credit card (used to pay for business and personal expenses).

[17] In addition to the above, the parties’ investments were managed exclusively by Mr. Enei via various CIBC and RBC accounts.

[18] Mr. Enei retired from his employment with the Federal Government in June 2021, with a full pension in the range of $180,000 per annum. At the time of the parties’ separation, Ms. Enei was working part-time as a free-lance bookkeeper for two clients. Ms. Enei vacated the matrimonial home on February 16, 2023, moving out of Ottawa and taking the two family dogs with her. After she moved out of the home, Ms. Enei found employment as a part-time receptionist, earning $17 an hour.

[19] At the time of the parties’ separation, Mr. Enei was 57 and Ms. Enei was 54.

[20] After Ms. Enei left the matrimonial home on February 16, 2023, Mr. Enei found out that she had made two withdrawals from the parties’ joint RBC account: one in the amount of $15,000 on February 15 and the other in the amount of $1,000 on February 16. He then went to the bank to organize himself in the absence of Ms. Enei, which is when, according to him, he “learned that what he was led to believe was all a lie”. He says that he discovered that Ms. Enei had stolen money from him and diverted large sums of money over the course of (at least) the past seven years of the parties’ marriage (he does not have access to older bank statements).

[21] Mr. Enei retained the services of an accountant, Lorne Kirsch, to perform a forensic audit of the parties’ financial affairs in 2023. In his report dated October 20, 2023, Mr. Kirsch concludes that at least $465,707 went unaccounted for over the course of the seven and a half years leading to the parties’ separation.

[22] It is on that basis that Mr. Enei seeks an unequal division of the parties’ Net Family Property, unjust enrichment and a beneficial interest in certain investments held in Ms. Enei’s sole name.

MS. ENEI’S SUMMARY JUDGEMENT MOTION

A. Legal principles applicable to summary judgement motions

[23] Ms. Enei’s motion for summary judgment is brought pursuant to Rule 16 of the Family Law Rules, O. Reg. 114/99, s. 16, (“FLR”). Rule 16 was amended in May 2015 to broaden the powers of the court on a summary judgment motion.

[24] In Gough v. Gough, 2019 ONSC 5441, I summarize the legal principles applicable to summary judgment motions as follows:

31 Summary judgment motions are governed by Rule 16 of the Family Law Rules.

32 The burden of proof is on the party moving for summary judgment. Pursuant to sub-rule 16 (4), the party moving for summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

33 Pursuant to sub-rule 16 (4.1), the responding party to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all the evidence they would be able to adduce at trial (Children's Aid Society of Toronto v. T. (K.), [2000] O.J. No. 4736 (Ont. C.J.); Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 (Ont. S.C.J.)).

34 Although sub-rule 16(4.1) sets out the obligation of the respondent to the motion to provide "in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial", this does not shift the ultimate burden of proof. Even if the respondent's evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial (Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316, No. 2 of para. 80).

35 Sub-rule 16 (6) provides that if there is no genuine issue requiring a trial of a claim or defense, the court shall make a final order accordingly.

36 Sub-rule 16 (6.1) provides that in determining if there is no genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be only exercised at trial:

1. Weighing the evidence
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

37 Pursuant to sub-rule 16 (6.2) the court may, for the purpose of exercising any of the powers set out in sub-rule 16(6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

38 In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (S.C.C.), the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted.

39 Hryniak sets out that the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in sub-rule 16 (6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required.

40 There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak — para. 49). As the Supreme Court stated at para. 50 of Hryniak, "the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute." (Kawartha, para. 63).

B. Unequal division of Net Family Property

[25] Section 5(6) of the Family Law Act, R.S.O. 1990, c. F.3, (“FLA”) grants the court discretion in certain specific circumstances to grant an unequal division of the parties’ Net Family Property. To be successful, Mr. Enei must show on a balance of probabilities that equalizing the parties’ Net Family Property would be unconscionable (Serra v. Serra, 2009 ONCA 105, at para. 1, Berdette v. Berdette (1991), 3 O.R. (3d) 513 (Ont. C.A.), at pp. 525-526).

[26] The threshold of "unconscionability" under s. 5(6) is exceptionally high. The jurisprudence is clear that circumstances which are "unfair", "harsh" or "unjust" alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must "shock the conscience of the court" (Serra v. Serra, at para. 47).

[27] Mr. Enei’s claim for an unequal division of the parties’ Net Family Property rests on two themes. Firstly, he argues that Ms. Enei’s use of the CT Mastercard and joint RBC chequing account was excessive for a two-person household. Essentially, he takes the position that over the seven and a half years leading to the parties’ separation, Ms. Enei engaged in “out-of-control spending on credit cards”, and that her own income was never deposited in the parties’ joint account. This, in his view, amounts to an unconscionable dilapidation of the parties’ assets, in accordance with s. 5(6) (d) of the FLA.

[28] Secondly, he alleges that over the seven and a half years preceding the parties’ separation alone, Ms. Enei redirected at least $465,707 from the party's joint chequing account to her own personal accounts.

[29] Mr. Enei takes the position that there are credibility issues which require a trial in relation to his claim for an unequal division of the parties’ Net Family Property.

[30] First, he states that the parties disagree as to whether he knew that Ms. Enei had opened bank accounts in her sole name with RBC and TD. In my view, nothing turns on this. Whether Mr. Enei knew or not is irrelevant. Ms. Enei was perfectly entitled to open bank and credit card accounts in her sole name, with or without Mr. Enei’s consent or knowledge. Marriage does not displace an individual’s capacity or ability to manage their own affairs as they please. The important question is: what were the accounts and the money they contained used for?

[31] Second, Mr. Enei states that there is significant financial disclosure that Ms. Enei has yet to provide, and which the trial judge will have to carefully consider to ascertain his claims. For the reasons set out below, as well as those set out in the section entitled “Mr. Enei’s Motion”, I disagree. 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 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.

i) Ms. Enei’s excessive spending

[33] Mr. Enei claims that the parties’ fixed household expenses during the last seven years of their marriage were less than $3,000 per month, leaving $7,000 per month as disposable income which ought to have been saved or otherwise invested for the benefit of both parties. Upon Ms. Enei's departure, he says that he discovered that Ms. Enei’s use of the parties’ monthly disposable income as well as her use of the parties’ credit cards was excessive for a two-person household. He says that after scrutinizing his household expenses for both pre and post-separation periods, he has observed a significant difference.

[34] Mr. Enei also scrutinized Ms. Enei’s TD Visa statements, and points to the fact that almost all of Ms. Enei’s purchases on this card were “for her own personal items”, such as clothing and sewing accessories. Having reviewed food purchases on the parties’ Mastercard for the seven years prior to the parties’ separation, he states that the food purchases for their two-people household exceeded the data provided by Statistics Canada for a four-person family by over 200 percent. Over the course of those seven years, he says, Ms. Enei put $547,286 on the parties’ Mastercard, which in his view confirms a pattern of excessive use of credit cards by her.

[35] This, in Mr. Enei’s view, supports his conclusion that his wife deliberately mismanaged and redirected the parties’ disposable income “for the sole purpose of her self-gratification and with the express purpose of re-establishing a new single life for herself post-marriage”.

[36] Section 5(7) of the FLA sets out the rationale behind the equalization regime provided by s. 5, which imposes an equal sharing of the family property acquired by the parties (or any one of them) during their marriage. It states:

The purpose of this section is to recognize that childcare, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6).

[37] This rationale is affirmed in the preamble of the Act, which states:

Whereas it is desirable to encourage and strengthen the role of the family; and whereas for that purpose it is necessary to recognize the equal position of spouses as individuals within marriage and to recognize marriage as a form of partnership; and whereas in support of such recognition it is necessary to provide in law for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership, and to provide for other mutual obligations in family relationships, including the equitable sharing by parents of responsibility for their children.

[38] Essentially, Mr. Enei is asking the court to review years of family spending to pose its own judgement as to whether Ms. Enei used the family income reasonably, or whether the way she spent “Mr. Enei’s money” was questionable or excessive. Notably, this is something that Mr. Enei himself never bothered to do during thirty-four years of marriage. In my view, Mr. Enei’s allegations of excessive spending by his wife not only disregard the realities and necessities of family life, including his own, they are also simply not supported by the extensive financial evidence that is before the court, as will be further explained in the section below.

[39] Based on all the evidence before me (including as set out in the section below), I find that Ms. Enei has met her burden to show that there is no genuine issue requiring a trial in relation to Mr. Enei’s allegations of excessive spending on her part justifying an unequal division of the parties’ Net Family Property. I find that there is absolutely nothing unconscionable about applying the equalization regime to the parties in this case, and none of the evidence provided to me by Mr. Enei shakes this conclusion.

ii) Diversion of large sums of money into personal bank accounts

[40] As stated earlier, Mr. Enei hired Mr. Kirsch to complete a forensic review of the parties’ financial affairs for the period of March 31, 2016 to April 4, 2023. Based on all the disclosure received, he concluded that the amount of $465,707 was either diverted by Ms. Enei or unaccounted for. More specifically, the quantum of funds that were unaccounted or missing over that period was summarized by him as follows, by category:

• Withdrawals from ATM's: $94,140;
• Online transfers: $85,732;
• Other transfers: $85,456;
• Investments re-directed: $214,990;
• TD Credit card payments: $118,257;
• Line of Credit (LoC) receipts/payments: $48,445;
• Mastercard payments: $19,600;
• Payments from Ms. Enei's RBC account: $64,823;

For a total of $465,707 “diverted or unaccounted for”.

[41] It is important to note at this juncture that in the context of completing his forensic review, Mr. Kirsch had a copy of all banks, credit card and line of credit monthly statements for all the parties’ accounts listed above in this decision, whether held in their joint or sole names, for this entire period, with the exception of a few of Ms. Enei’s TD Visa statements. This is important to point out because of Mr. Enei’s argument that this summary judgement motion ought not be granted due to the lack of financial disclosure from Ms. Enei (discussed in more detail below).

[42] Having thoroughly reviewed Mr. Kirsch’s forensic report, I conclude that there are a number of very obvious problems with his conclusions.

[43] The first problem is Mr. Kirsch’s assumption that since Mr. Enei did not have access to a bank card for the parties’ joint RBC chequing account [1], all ATM (cash) withdrawals made in that account over the course of the period under review were monies “diverted” by Ms. Enei for her sole benefit. These amounted to $96,000 over the course of seven years.

[44] Similarly, Mr. Kirsch assumes that transfers completed online with a debit card, which show on the joint RBC monthly statements as “No Desc” or “online transfer”, were all made by Ms. Enei and, therefore, were used and diverted by her for her sole benefit. These transactions amount to $187,000, $23,500 of which comprised of expenses which Mr. Kirsch was eventually able to identify, resulting in $163,500 of transfers “unaccounted for”. Mr. Kirsch however acknowledges that there were $97,000 of “No Desc” deposits in the account during that period of time as well, of which $64,000 came from Ms. Enei’s personal RBC account. Therefore, the net amount that Mr. Kirsch assumes was diverted by Ms. Enei is in the range of $100,000.

[45] It is not disputed that Ms. Enei was solely responsible for the management of the parties’ day-to-day financial affairs. Even if I accept that Mr. Enei did not have a bank card and, therefore, did not withdraw or transfer money from the joint RBC account, it is a significant leap to assume that all cash withdrawals made by Ms. Enei over the course of these seven years were diverted to other bank accounts or used “for her sole benefit”.

[46] Ms. Enei’s evidence is that the majority of the withdrawals from the joint RBC account were for Mr. Enei’s benefit. She explained that the parties kept cash funds in the house in the event of emergencies, to pay for haircuts, firewood and any other cash deals Mr. Enei arranged. When dining out with Mr. Enei, cash was always used. Additionally, Ms. Enei explains that Mr. Enei also requested approximately $300 from each of his paychecks to pay for his incidentals (personal expenses). This evidence was not disputed by Mr. Enei. At $300 per paycheck (26 pay periods per year) over the course of seven years, this alone would account for $54,600 of the cash withdrawals.

[47] Mr. Kirsch found that there was only $2,755 worth of unexplained withdrawals from the parties’ joint RBC line of credit over these seven years. Moreover, he notes that reimbursements towards the parties’ joint RBC line of credit ($48,445) and Mastercard ($19,600) came from Ms. Enei’s personal RBC account. This is in addition to many specific purchases that he acknowledges were paid out of Ms. Enei’s personal RBC account (such as the payment of home and car insurance payments, the purchase of her vehicle, a generator, and other smaller items). This clearly supports Ms. Enei’s evidence that she used her personal RBC account to save up money which would then be used to pay for significant purchases or larger expenditures.

[48] Moreover, this was a traditional relationship in which Mr. Enei was the main (and for many years, the only) breadwinner, while Ms. Enei took care of the children, the home, the family’s finances, and many more things. To suggest that Ms. Enei’s purchase of personal items, services, and clothing “for her sole benefit” amounted to reckless spending or to a diversion of large sums of money sufficient to meet the threshold of unconscionability, is simply absurd.

[49] Finally, Mr. Kirsch concludes that the amount of $214,990 originally invested by the parties in various investment accounts, were “re-directed by Ms. Enei to unknown locations”, and that $118,257 of “Mr. Enei’s money” was used by her to pay her TD Visa credit card (which she also used, according to his assumption, for her sole benefit).

[50] I note that it is undisputed that Mr. Enei alone was responsible for the parties’ various investments at the RBC and CIBC. To suggest that Ms. Enei was able to divert almost $215,000 out of these investments that he managed himself, over a period of seven years, without his knowledge, is simply impossible to believe.

[51] It is to be noted that Mr. Kirsch used a cash flow method to reach his findings and attached the document as a schedule to the report. This, in an of itself, is another significant problem with his report. This is because in his analysis, Mr. Kirsch did not take into consideration the expenses paid by Ms. Enei with the use of her personal TD Visa, nor does it account for a considerable number of transactions which will be further discussed below.

[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.

[55] In addition to this, Ms. Enei provided evidence of the following major expenditures made by the parties over the course of those same seven years which were unaccounted for in Mr. Kirsch’s forensic report:

• Woodworking shop for Mr. Enei: $82,469;
• Wood working tools for Mr. Enei (2016 - 2023): $69,634;
• Legal Fees related to Mr. Enei’s father’s Estate: $10,628;
• Legal Fees related to Mr. Enei’s employment matter: $46,745;
• 2022 Income Tax Liability resulting from Mr. Enei’s retirement: $18,654;
• The purchase of a Honda for Emily (one of the parties’ children): $16,321;
• The purchase of a Subaru for Ms. Enei: $32,558;
• The purchase of a Toyota Tacoma (accounting for trade in value): $28,222;
• Armour Stone installation along driveway: $12,561;
• Kitchen renovations: $40,023;
• New deck: $9,925;
• The purchase of a generator: $8,033;
• Window and door upgrades: $10,158;
• Heating upgrades: $8,339;
• Major plumbing repairs: $19,838.33.

[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. To demonstrate how precisely she has addressed all alleged unaccounted expenses, I feel it is necessary to provide a short excerpt from her affidavit:

6. Disclosure in support of the following significant amounts George claims to be unaccounted for, are attached hereto: a. 2016 - RBC “GIC” Account # *** 34345 for $129,947.00 ($128,851.26 + $1,095.24 interest) matured on March 5, 2016. These funds were then disbursed as follows, i. March 5, 2016, Online transfer to Sarah Enei for $2,000.00; ii. March 5, 2016, Online loan payment to joint LoC of $3,000; iii. March 7, 2016, GIC purchased for $55,000.00 - RBC acct. # *** 34345; and, iv. April 16, 2016, Online Mastercard payment of $4,000. v. Both parties' reconciliations show a shortfall for 2016. This results from the construction of the Applicant's woodworking shop. b. 2016 - The unexplained withdrawal on the RBC LoC for $855.00 was a bill payment made to the Canadian Tire Mastercard. c. 2017 - The RBC GIC purchased in March 2016 for $55,000.00 matured on March 7, 2016 with interest of $495.00 the total funds were transferred into the joint RBC chequing account. From there the funds were disbursed in the following manner, i. March 7, 2017 online payment to joint LoC for $22,000.00; ii. March 7, 2017 online transfer to joint RBC e-savings for $8,000.00; and, iii. June 5, 2017, the amount of $25,021.58 was invested in a new GIC. d. 2018 - Unexplained Withdrawals from CIBC Savings of $10,500.00; i. February 12, 2018 banking activity: Withdrawals of $2,500, $2,000 and $1,000 already indicated deposited to my RBC savings account for additional funds needed for purchase of Subaru (Page 16 of RBC (877) Custom Report; and, ii. August 7, 2018 banking activity: CIBC bank Draft was deposited to RBC joint chequing account.

[58] This detailed response for all amounts allegedly unaccounted for goes on for all subsequent years (until March 2023).

Conclusion

[59] Mr. Enei’s claim for an unequal division of the parties’ Net Family Property has no chance of success unless he is able to prove on a balance of probabilities that Ms. Enei spent so excessively during the marriage, or diverted such large sums of money, that it would be unconscionable for her to receive one half of the parties’ family property acquired during their 34 years of marriage.

[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.

[61] Mr. Enei is essentially asking Ms. Enei to account for every single dollar of family income (“his” income) that she spent over the course of the past seven years (and beyond), which is not only unreasonable, but also completely ignores the realities of a family’s life. In Serra v. Serra, the Court of Appeal described Ontario's property regime (in the context of a discussion about section 5(6) ) as follows:

The design of the legislation is to promote the goals of certainty, predictability and finality in the resolution of property matters following the breakdown of marriage. This, in turn, is founded on the central premise articulated in s. 5(7) that "inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of [their joint] responsibilities, entitling each spouse to the equalization of the net family property, subject only to the equitable considerations set out in subsection (6) (emphasis added).

[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.

[63] This claim is therefore summarily dismissed.

C. Unjust enrichment

[64] In order to successfully prove a claim for unjust enrichment, Mr. Enei must show that Ms. Enei has been enriched, that he suffered a corresponding detriment, and that there is no "juristic reason" for the enrichment. If Mr. Enei successfully proves a claim for unjust enrichment, he may be entitled to a monetary award and/or a proprietary award by way of constructive trust.

[65] The parties in this case are married. In McNamee v. McNamee, 2011 ONCA 533, the Court of Appeal held that the court must resolve questions of ownership – including beneficial ownership – before it determines each party's net family property and calculates the equalization payment. Therefore, where a party is claiming a remedial constructive trust, the court is to determine the claim for unjust enrichment (and the appropriate remedy, if any) before determining the claim for equalization (see also Martin v. Sansome, 2014 ONCA 14).

[66] The Court of Appeal also emphasized that, in the vast majority of cases, any unjust enrichment that arises as a result of a marriage will be fully addressed through the operation of the equalization provisions under the FLA, including under s. 5(6) of the Act.

[67] In his Application, Mr. Enei seeks “a declaration that Ms. Enei has been unjustly enriched by Mr. Enei’s contributions to the respondent’s assets, the remedy for which is 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”. The facts upon which he relies to make this claim are the same facts as those that he relies on to claim an unequal division of the parties’ Net Family Property, namely: excessive spending by Ms. Enei, and diversion of large sums of money into her own bank accounts.

[68] I have already concluded that the evidence before me does not support either of these allegations. Even if it did, the effect of granting Mr. Enei a beneficial interest in some, or all, of Ms. Enei’s assets would not lead to a different result, mathematically. This is because such beneficial interest would be granted to Mr. Enei prior to equalizing the parties’ Net Family Properties. Ultimately, Ms. Enei would still get one half of the accumulated net value of the property acquired by them during their 34-year marriage.

[69] This claim, therefore, is summarily dismissed.

D. Beneficial ownership of certain investments by way of resulting trust

[70] This claim is framed as follows by Mr. Enei in his Application:

Excluded Property

37. The Applicant holds various accounts at the CIBC where money from his inheritance has been invested.

38. The Applicant placed inheritance money into an account with the CIBC that is held in the name of the Respondent, but it is beneficially owned by the Applicant.

39. The inheritance monies are excluded property.

[71] Many of the facts relevant to Mr. Enei’s claim for a declaration that he is the beneficial owner of investment accounts held in Ms. Enei’s name by way of resulting trust are not disputed.

[72] Mr. Enei’s father, Angelo Enei, passed away on August 22, 2015, and Mr. Enei retained Johnston Family Law to assist him with the administration of the estate. At Mr. Enei’s instruction, the inheritance amount ($350,000) was made payable to both parties and was deposited into the parties’ joint RBC account.

[73] It is not disputed that prior to receiving his inheritance, Mr. Enei instructed Ms. Enei to open a number of accounts at CIBC. Within days of receiving the inheritance, the funds were disbursed as follows:

• CIBC TFSA Account in Mr. Enei’s sole name: $52,000;
• CIBC TFSA Account in Ms. Enei’s sole name: $52,000;
• CIBC GIC Account held in the parties’ joint names: $175,000;
• CIBC Savings Account in the parties’ joint names: $11,000;
• RBC Personal Savings Account in Ms. Enei’s sole name: $8,000.

[74] The remaining $52,000 was used as follows by Ms. Enei:

• $25,000 was gifted to Sarah (one of the parties’ adult children)
• $10,000 was gifted to Emily (one of the parties’ adult children)
• And $13,376 was used to pay off Emily’s car loan with Honda Canada Finances, following which the vehicle was transferred into Emily’s name in November 2017.

[75] It is important to note that there is no dispute about the above. Indeed, Mr. Enei in his own affidavit included a copy of all bank drafts confirming how these monies were distributed by Ms. Enei. This left less than $4,000 which were either withdrawn in cash or used to pay for household expenses.

[76] Over the course of the next five years when the joint GIC purchased matured, the parties generally reinvested the funds into each of their TFSA accounts. As was the case for older investments, Mr. Enei was responsible to re-invest these monies, which he did until the parties separated.

[77] Mr. Enei makes no claims in relation to the monies that were gifted to the parties’ children. However, he takes the position that all monies invested in accounts held in Ms. Enei’s sole name are beneficially owned by him by way of a resulting trust and are therefore excluded from his Net Family Property since they are part of his inheritance from his father received during the marriage.

[78] A resulting trust arises when title to property is in one party's name, but that party, because he or she "is a fiduciary or gave no value for the property", holds the property in trust for the other party and is under an obligation to return the property to the other party (Pecore v. Pecore, 2007 SCC 17 at para. 20). The effect of a resulting trust is that the title to the property reverts back to the beneficiary.

[79] The presumption of resulting trust is a rebuttable presumption of law and of the general rule that applies to gratuitous transfers. When a transfer is challenged, the presumption allocates the legal burden of proof. Thus, where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended. This is so because equity presumes bargains, not gifts (Pecore v. Pecore, at paras. 24 and 25). However, s. 14 of the FLA alters the presumption of resulting trust when in the presence of married spouses who own the property in their joint names. According to s. 14, the fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants.

[80] In the case at hand, it is not disputed that the inheritance money was paid to the parties by way of a cheque made in their joint names, and that the money was subsequently invested by them in the various TFSA, GIC and bank accounts listed above (some in the parties’ respective sole names and some in joint accounts). The issue to be decided, therefore, is whether Mr. Enei intended to gift one half of his inheritance (which would otherwise be excluded from his Net Family Property) to Ms. Enei at the time it was received and paid to the parties’ joint names, or when it was invested in various accounts, including joint accounts or accounts held in Ms. Enei’s sole name.

[81] Mr. Enei’s intention at the time of the transfer, therefore, is at the heart of this claim.

[82] This question raises credibility issues which must be determined at trial. For this reason, I find that the focussed issue of whether a gift was intended by Mr. Enei requires a trial. Ms. Enei’s summary judgement motion on this claim is therefore dismissed.

E. Fixing the equalization amount owing

[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.

Mr. ENEI’S MOTION

[84] As stated above, Mr. Enei filed his own motion in which he seeks the following orders:

• Allowing for the divorce to issue (severing the divorce from the other issues in the case);
• Exclusive possession of the matrimonial home;
• An accounting of all assets owned by the Applicant anywhere in the world;
• A long list of disclosure;
• The return of the two family dogs to him or, alternatively, an order for “shared custody” of the dogs;
• A temporary variation of the interim spousal support order in place, based on an imputed income in the amount of $100,000 for the Applicant.

[85] In my view, most – if not all – of these claims for relief are being advanced to divert the Court’s attention from what is otherwise a valid motion for summary judgement brought by Ms. Enei. In other words, I am of the view that Mr. Enei’s response to Ms. Enei’s motion for summary judgement fits the adage of “the best defence is a good offence”. The many orders he requests in response to Ms. Enei’s motion were either unnecessary or unreasonable based on the facts of this case.

[86] I will nonetheless address each of them succinctly.

A. Severing the divorce

[87] The divorce is hereby severed from the other issues in the case, as this was not disputed by Ms. Enei (I am not aware that it was ever requested before Mr. Enei’s cross-motion was filed). Either party is free to seek a divorce on an uncontested basis.

B. Exclusive possession of the matrimonial home

[88] There was absolutely no need to seek an order for exclusive possession of the matrimonial home. Ms. Enei vacated the home voluntarily on February 16, 2023, and except for one occasion where she attended the home to retrieve her personal belongings, on notice to and with the consent of Mr. Enei, she never returned to the home, nor did she ever threaten to do so. Mr. Enei has had de facto exclusive possession of the home since February 15, 2023, with the acquiescence of Ms. Enei. I decline making an order for exclusive possession and there is no need for same.

C. The return of the pets to Mr. Enei

[89] Justice Minnema in King v. Mann, 2020 ONSC 108 at para. 70, had the following to say about disputes related to pets:

Notwithstanding the universal agreement in the case law that dogs, being living beings, are a special, important, and unique category of personal property, for the purposes of practicality and expediency the law continues to hold that disputes over dogs are to be approached in the same manner as with any other personal property, namely the relevant question is ownership.

[90] Recently, caselaw, such as Carhvallo v. Verma, 2024 ONSC 1183, reaffirmed this principle. Although the court in some limited cases (such as Coates v. Dickson, 2021 ONSC 992) broadened the scope of the ownership analysis, ultimately it continues to focus on the issue of “who is the legal owner of the pet”?

[91] The evidence before me, which is highly disputed, does not allow me to determine who is the rightful owner of the two dogs that Ms. Enei took with her on the day she left the home. This issue will have to be resolved at trial.

[92] Further, it is not open to the Court to make a joint custody order in relation to pets, as requested by Mr. Enei.

D. Imputing an income to Ms. Enei so as to reduce temporary spousal support

[93] Mr. Enei’s request to impute a higher income to Ms. Enei on a temporary basis, so as to decrease his spousal support obligations pending trial, is also dismissed.

[94] This was a 34-year traditional marriage during which Ms. Enei’s primary responsibility was to care for the children and the home. Her yearly income throughout the parties’ marriage, during the periods that she engaged in part-time work, was always a small fraction of Mr. Enei’s income. Any income she earned was seen as a means to supplement the husband’s much more significant income.

[95] At the time of the parties’ separation, Ms. Enei was self-employed as a bookkeeper earning $25 an hour on a part-time basis. In 2023, her net self-employment income in 2023 was $11,954 with a gross of $17,675. Because of the financial hardship she suffered as a result of not being financially supported by Mr. Enei, in 2024, she took on a part-time position as a receptionist where she is paid $17 an hour. She continues to do some bookkeeping work on a part-time basis. She is paying for day-to-day expenses by drawing down in her savings and investments.

[96] At a Case Conference held in September 2023, the court ordered Mr. Enei to pay interim without prejudice spousal support of $2,180 per month. This is significantly lower than what the Spousal Support Advisory Guidelines suggest for such a long, traditional marriage considering Mr. Enei’s $184,890 yearly income and Ms. Enei’s current income. Mr. Enei’s request to impute a $100,000 income to Ms. Enei, on a temporary basis, not only ignores Ms. Enei’s age, qualifications, and employment history, it also completely disregards the roles that each party played during their lengthy marriage.

[97] In addition, Mr. Enei’s expectations with regards to Ms. Enei’s obligation to maximize her own income ignores the fact that he is currently enjoying his own retirement while expecting Ms. Enei to work full-time.

[98] Mr. Enei’s request to impute a $100,000 income to Ms. Enei on a temporary basis is dismissed.

[99] In her Factum, Ms. Enei sought to increase interim spousal support to $6,305 per month. However, she did not bring a motion to seek an increase in spousal support. She cannot seek an increase of spousal support as a response to Mr. Enei’s motion to impute an income to her and reduce spousal support.

E. Financial disclosure

[100] Mr. Enei’s request for disclosure is unreasonable. As detailed above, the extent of the disclosure already provided by Ms. Enei so far in these proceedings far exceeds what would otherwise be deemed reasonable and proportional, in my view. Mr. Enei’s request for disclosure is overly broad and all-encompassing. In his Notice of Motion, he seeks the following:

• An accounting of all property and assets under the Respondent's control from the date of marriage to the present in Canada, the United States of America, and elsewhere;
• An Order that the respondent shall provide complete, timely and orderly disclosure (personal or otherwise) relevant to the determination of the issues in the matter up to and including the trial, including her income for support purposes.

[101] In his affidavit sworn March 25, 2024 (exhibit B), Mr. Enei includes a letter from his counsel to Ms. Enei’s counsel setting out the specific disclosure that is still missing from his perspective. Such includes, for instance (reproduced verbatim):

14. A declaration from all the major banks in Canada confirming that Ms. Enei has no accounts or any further account with said bank, specifically from: (a) TD (b) CIBC (c) RBC (d) PC (e) Scotia (f) National Bank (g) HSBC (h) Laurentian (i) Tangerine (j) EQ Bank

15. E-transfers, sent and received, paid into or out of her personal account, from 2009 to present.

16. Produce statements for TD Visa Account from January 2016 to the present.

17. Produce annual statements for the two RRSP accounts ending in *769 and *513, respectively, from January 2016 to the present.

18. Detailed explanation for why $96,000 in ATM withdrawals were made and an accounting of where those funds were used.

19. Detailed explanation regarding the branch-to-branch transfers o Account was money transferred to; and o Recipient of transfer.

20. Detailed explanation regarding the transactions coded as "no description," which total $187,000 in withdrawals. o Accounting of what these funds were used for; and o Where the money was deposited.

[102] For good measure, counsel ends his letter by advising Ms. Enei that “We trust that your client understands the gravity of this situation and cooperates”.

[103] I am of the view that disclosure requests are being used by Mr. Enei at this stage of the proceeding as a weapon, rather than a means to ascertain the parties’ reasonable claims. It is not appropriate to simply engage in an endless pursuit of information and documents. Disclosure must be proportionate to the issues before the court. While full and frank disclosure is a fundamental tenet of the FLR, requests for disclosure must remain proportional and the parties must show common sense and reasonableness (Frost v. Frost, 2024 ONSC 2594, paras. 8 to 14, Saunders v. Saunders, 2015 ONSC 926, paras. 10, 13 and 15, Burton v. Burton, 2016 ONSC 62).

[104] Mr. Enei’s requests for disclosure are not only disproportional to the issues before the court, but some of these requests are also simply impossible to satisfy (who can possibly explain how they have used the money from each and every withdrawal made at an ATM over the course of seven years???). Despite the unreasonable nature of Mr. Enei’s requests, Ms. Enei has provided more than satisfactory answers to most – if not all – of them. Mr. Enei’s multiple additional requests for disclosure are simply excessive.

[105] The only disclosure which I find relevant to the outstanding issues in this case, and which I will require Ms. Enei to provide, is the following, which is mainly related to the issue of spousal support (assuming it has not already been provided):

1- T1 Tax Returns from 2016 to 2019, including all Notices of Assessment/Reassessment; 2- A complete copy of Ms. Enei’s 2021 T1 Tax Return; 3- All supporting documents relating to the business expenses claimed by Ms. Enei on her 2020, 2021, and 2022 T1 Generals; 4- Copies of all certifications, courses completed, training received, and all recertification date in relation to Ms. Enei’s certification as an RBC Express Certified Expert; 5- Proof of payment for Sarah Enei’s vehicle.

ORDER

[106] Based on all the above, I make the following order:

1- Mr. Enei’s claims for unjust enrichment and unequal division of the parties’ Net Family Property are dismissed. 2- Ms. Enei shall provide the disclosure listed above within 30 days. 3- The divorce is severed from the other issues in this case. Either party is free to file the documents needed to obtain a divorce on an uncontested basis. 4- All other claims for relief in Mr. Enei’s motion are dismissed. 5- The next step in this matter is a Settlement Conference or a combined Settlement and Trial Management Conference. 6- This matter is added to the November 2025 Trial Sittings. The parties are required to schedule a Trial Management Conference by no later than the end of September 2025, if the matter is not by then settled. 7- There shall be no further motions in this case without my prior leave.

COSTS

[107] Ms. Enei is the successful party in this case. If the parties cannot agree on costs, they may provide me with written submissions on costs not exceeding five (5) pages, double-spaced, plus Bill of Costs and relevant Offers to Settle, along the following timelines:

• Ms. Enei to serve and file by November 22;
• Mr. Enei to serve and file by December 6;
• Any reply by Ms. Enei to be served and filed by December 13.

Madam Justice Julie Audet

Released: November 14, 2024

[1] This is disputed by Ms. Enei, who said that Mr. Enei did have a bank card for the joint RBC account. However, it does not seem overly disputed that if he had one, he rarely – if ever – used it. For the purpose of this motion, I accept that Mr. Enei did not have a bank card for this account.