Superior Court of Justice – Ontario

Court File No.: 1081/24
Date: April 22, 2025

Between:
Diane Filipe, Applicant
and
Keven Moniz, Respondent

Before: Alex Pazaratz

Counsel:
Kanata Cowan, Counsel for the Applicant
Sage Harvey, Counsel for the Respondent

Heard: April 17, 2025

Endorsement

Background

[1] This is a very simple motion on a hugely complicated file.

[2] The parties were married July 17, 2004.

[3] They separated June 7, 2024.

[4] They have two children ages 15 and 13. Both children have remained in the Applicant mother’s care since the date of separation, residing in the jointly owned matrimonial home.

[5] The father has re-partnered and is living in a cottage property, also jointly owned by these parties.

[6] The parties also have three jointly owned rental properties, and the father has an additional rental property in his name.

[7] There are six properties altogether, as part of a complex property regime.

[8] There are serious allegations of abuse by the father, not only during the relationship but also subsequent to separation.

[9] The mother was a stay-at-home parent and hasn’t worked outside of the home since the birth of the children.

[10] During the relationship he was the breadwinner, and the mother assumed primary responsibility for the children.

[11] The father says he has been unemployed since February 2023. He says he has been unable to work since then. He is currently receiving $1,058.60 biweekly in WSIB benefits. He has no income from employment or self-employment.

[12] The mother says the father was financially abusive, and has deliberately refused to provide funds since separation.

[13] So there are many more bitterly contested issues, including spousal support, child support, imputation of income, allegations of fraud, exclusive possession, partition and sale, occupation rent – and of course parenting.

November 22, 2024 Temporary Order

[14] On November 22, 2024 at a contested urgent motion I made the following temporary-temporary without prejudice order:

• Mother to have exclusive possession of matrimonial home.
• Mother to have primary residence and sole decision-making authority in relation to the children.
• Restraining order against father.
• Father to pay $1,500.00 costs.

[15] At the November 22, 2024 urgent motion I had offered to give the parties an early Case Conference, but the then-self-represented father indicated he needed more time to retain counsel. Accordingly the matter has been delayed.

[16] The parties now have a Case Conference scheduled for May 22, 2025.

The Father’s Urgent Motion

[17] In that context, today I am dealing with the father’s urgent motion dated March 26, 2025 which includes the following requests:

• Leave to proceed prior to a Case Conference.
• Mother to immediately pay the father $108,969.70 representing 50% of the funds the mother removed from joint accounts following separation.
• Costs

Undisputed Facts

[18] The basic facts are not disputed:

• In August 2024, shortly after separation, the mother removed all the money the parties had in various joint accounts -- a total of $217,939.40 -- and took control of those funds herself.
• Prior to separation, the parties had labelled two of those accounts as intended savings for the two children (one account for each child). But both parties acknowledge that despite such labelling, the money in those two accounts still belonged to the parents jointly, and not the children.
• After transferring all of that jointly owned $217,939.40 into her own control, during the next eight months she spent a significant portion of the money. She says some of it was for legal fees. Most of it was for living expenses.
• There’s $126,879.00 left.

[19] The father says half of that $217,939.40 was his, so he wants it back. His motion requests that the mother pay him $108,969.70 from the $126,879.00 she still has. That way each of them would have received their half of the money.

[20] The father’s alternate request is for a significant but lesser sum: at the very least half of the amount still remaining.

[21] The mother doesn’t want to release any money to the father. She wants the ability to continue to spend the remaining funds as required.

The Father’s Submissions

[22] The father’s submissions include the following:

• The parties own six properties with varying amounts of equity (possibly very little in some of the rental properties), but their only liquidity was the joint monies which the mother unilaterally appropriated.
• All four rental properties are in a loss position. He would have preferred to keep some of them in an overall settlement. Some or all may have to be sold. But in the meantime he needs funds to keep the properties going, so that the mortgages do not fall into arrears, which would result in power of sale proceedings. Even if the properties must be sold, it’s not in the interests of either party to have a “fire sale”. The father needs funds to control the disposition of the rental properties, and this will also benefit the mother.
• The mother has already retained exclusive possession of the largest single asset the parties have: the jointly owned matrimonial home which has significant equity.
• The mother is using the jointly owned money she appropriated to pay for her own legal fees. The father has no other savings, so he doesn’t have the resources to similarly fund his own litigation. The mother has created an uneven playing field by being well-funded for this bitter litigation, while the father is having trouble paying a lawyer to provide comparable legal assistance.
• The father is now in dire financial circumstances, while the mother is freely spending joint money for anything she needs.
• The father’s lawyer has attempted to negotiate a resolution of this issue but the mother is adamant that she won’t release a penny to him. That’s why he had no alternative to bring a motion. The motion is urgent because of immediate cashflow needs, including mortgages on various properties.
• It is not fair that the mother has exercised self-help and simply appropriated all of their joint money, to enrich her situation and impoverish his.

The Mother’s Submissions

[23] The mother’s submissions include the following:

• The father’s motion is not urgent. He should not be allowed to pursue this issue until after the parties’ May 22, 2025 Case Conference.
• The father has taken no steps to assist in resolving property or financial issues on this file. He has dragged out the process. He has not made adequate disclosure.
• Since separation the father has been paying very little in child support, leaving the mother with full financial responsibility for herself, the two children, four dogs, and the matrimonial home. The mother is unemployed with no source of income, so she had to draw upon the joint accounts to pay bills and living expenses.
• The mother listed many individual expenses she paid. She claimed some of those expenses were as a result of malicious behaviour by the father in cancelling various accounts (which he denies).
• She says the father told her that if she needed money for living expenses she could draw upon the joint accounts. So she acted with his permission.
• She says she still has to pay outstanding HST of $18,030.66 for a business the parties operated. As a director of the company she is obligated to pay that money.
• She says the rental properties all need to be sold. The father has created a financial crisis for himself by delaying the inevitable, and refusing to list the properties.
• The mother has used some of the money to pay some expenses in relation to the rental properties. But the father has taken steps to deprive her of access to information about the rental properties.
• The father is malicious and deceitful. He is attempting to ruin the mother by hiding his own assets and then claiming half of the more visible assets in the joint accounts.
• If any money is released to the father he will dissipate those funds through dishonesty and on drugs. If a future adjustment is required, for equalization or any other claim, any money the father receives now will not be recoverable later.

Attempts at Resolution

[24] During argument of the motion, the parties explored an agreement to sell some of the properties. But they couldn’t agree on which ones, and they couldn’t agree on what should happen to any net proceeds. And there was no motion before the court to deal with the properties. So the only issue left for me to decide was the father’s motion in relation to the joint money which the mother seized control of.

Considerations

[25] My considerations include the following:

• Some of the father’s evidence and submissions, and much of the mother’s evidence and submissions related to important issues and allegations – but they had nothing to do with the narrow issue on this motion.
• The mother’s counsel strenuously attempted to portray the father as dishonest, unscrupulous, untrustworthy, malicious, abusive, deceptive, scheming, and a substance abuser. Drawing upon some of the evidence I accepted when I granted the urgent November 22, 2024 order (exclusive possession to mother; restraining order against father), I must comment that I have serious concerns about some of the father’s behaviour, both within this litigation, and more generally.
• However, the mother has really been unable to establish a connection between saying that the father is really a bad person, and justifying the mother unilaterally taking $108,969.70 which was presumptively his half of the joint accounts.
• The mother says she needed money for multiple living expenses for herself and the children. This is entirely understandable, given the fact that the mother has no source of income and the father has been paying little or no support (there’s clearly both a spousal and child support entitlement). In this respect, the father acknowledges that he told the mother she could draw upon joint funds as reasonably necessary, while they sorted out the issues in this case. But I accept the father’s position that while he said the mother could draw upon some funds as needed, he never said take all of the money all at once.
• The mother says she wants to retain all of the remaining $126,879.00, because future support from the father is unlikely, and she’ll eventually need this money for herself and the children. However, even as of the date of the hearing of the motion, the mother had not brought a motion seeking any specific relief in relation to the joint money. She didn’t bring a motion for a preservation order in relation to any of the money, to ensure that it would be available if needed. She didn’t bring a motion for interim support, to be funded by any of the father’s one-half share of the net proceeds. She has never sought any formal determination that she was entitled to seize all of the money, or to allow her to retain the balance she still controls.
• The mother has simply exercised self-help, taking the father’s half of the joint funds, without any agreement or authority.
• The mother says the safest course is to leave all the money in her control, and to allow her to continue to spend it as required. She says if it turns out she owes the father money in the overall settlement, she can be counted on to pay him. But if it turns out the father owes her money at the end of the case, he won’t have the ability to make payment. But she offered no preliminary estimates of what any of those amounts or entitlements might ultimately be.
• The mother has not established any factual basis for her position. There are multiple properties with varying amounts of equity. The matrimonial home (which the mother doesn’t want to sell) has significant equity. The mother has not brought a formal motion for a preservation order. In any event, the mother has not established that monies or assets need to be frozen as security for future entitlements. (There may be a separate discussion about the distribution of net proceeds once various properties are sold, but we’re not there yet.)
• Essentially, the mother has failed to establish any legal basis for simply grabbing all of the joint money, spending a sizeable portion of it in her discretion, and wanting to retain the balance – again, to be used in her discretion.
• I agree with the father that the mother’s actions create an immediate imbalance and hardship for the father. We are at an early stage of a complex and bitter family court case. By seizing all of the cash savings, the mother has achieved an enormous strategic advantage, by ensuring that she has the ability to pay for a lawyer while the father does not.
• While the mother is understandably frustrated that the father’s sworn financial statement suggests he currently has minimal ability to pay support, there has not yet been any determination with respect to her allegation that he is hiding money and that income should be imputed to him.
  • She has a right to go to court to say he’s lying.
  • And he has a right to go to court to say he’s not.
  • If she deprives him of the ability to pay for a lawyer to tell his side of the story, she might win by default.
  • That wouldn’t be fair.
  • And with parenting issues being in dispute, it is even more important that both parents have the ability to fully participate in the discussion.
• Periodically encroaching on small amounts of joint funds to pay day to day expenses could easily be justified. But suddenly scooping up every penny sounds more like strategy than necessity.

Disposition

[26] I find that the father is entitled to the return of some funds from the mother. The issue is how much.

• As stated, of the $217,939.40 in joint savings the mother took, $108,969.70 presumptively belonged to the father. So there’s a strong argument that she should immediately repay the father that amount, from the $126,879.70 she still retains.
• But delay has made things more complicated. The mother took the money in August 2024. The father only brought this motion in March 2025. He even rejected my offer of an early Case Conference back in November 2024. So he has allowed a lot of time to go by – and a lot of his money to be spent – by waiting longer than he should have, to do something about it.
• Requiring the mother to repay $108,969.70 immediately would leave the mother with $17,910.00. Still a sizable amount of money. But with no likelihood that the father is going to be in a position to make any contribution to the family or the matrimonial home in the foreseeable future, it will be necessary for the mother to continue to encroach on savings. And $17,910.00 won’t likely last as long as this court case is likely to continue.
• The father needs funds for more than just legal fees. They both do.
• But by the same token, both parties are talking about making payments which might simply have to be deferred until their finances are reorganized. For example, while no one wants any of the mortgages on the four rental properties to go into default, three of those properties are jointly owned. Both parties may have to face the reality that there simply isn’t enough money to fund money-losing investment properties. Selling most of their properties immediately would free up a lot of money, and create available funds for any post-separation adjustments which may need to be made.
• As stated, the parties have a Case Conference scheduled for May 22, 2025. I accept the father’s submission that he requires relief prior to a Case Conference. The immediate objective should be to release to him a significant portion of his own money, while ensuring available cashflow for the family in the months to come. (In this respect, I note that the mother’s April 7, 2025 Financial Statement sets out monthly expenses of $9,750.68. Some of the expenses might be slightly reduced. Some might be deferred. As with many cases in family court, there may ultimately be an unavoidable shortfall.)

Order

[27] My order:

• The mother shall, immediately, pay to the father $75,000.00 as a partial repayment of his share of the joint savings.
• Of the remaining funds retained by the mother from the joint accounts (a little over $50,000.00), on a without prejudice basis $30,000.00 shall be deemed to be held in trust by the mother for the father. In the absence of any other order, the mother shall not be permitted to encroach on that $30,000.00 until after August 1, 2025, and in that event at a rate not greater than $7,500.00 per month.
• The expectation is that at the Case Conference scheduled for May 22, 2025 financial arrangements and realities will be discussed. If there is no resolution at the Case Conference, the expectation is that motions may have to be brought to deal with multiple financial issues, including the disposition of some properties, support, and any further determination of the disposition with respect to the aforementioned $30,000.00 held in trust by the mother.

Costs

[28] The father was successful. At the hearing of the motion the parties agreed that costs payable by the unsuccessful party should be in the sum of $6,000.00.

[29] The mother shall pay to the father costs of this motion fixed in the sum of $6,000.00. From that sum, $1,500.00 shall be reduced as a set off against the November 22, 2024 order against the father. This fully satisfies the November 22, 2024 costs order. The remaining $4,500.00 costs owing by the mother shall not be payable until final resolution of all issues in this case, or January 2, 2026, whichever comes first.

Alex Pazaratz
Date: April 22, 2025