Reasons for Judgment

Court File No.: 830/23
Date: 2025/05/06
Ontario Superior Court of Justice
Between:
Louris Korie, Applicant
– and –
Henri Korie, Respondent

Malcolm Graham, Counsel for the Applicant
Carmelo Runco, Counsel for the Respondent
Heard: March 24, 25, 26, 27, 28, April 14, 2025

Judgment
The Honourable Madam Justice T. Law

Part One – Introduction

[1] This is my decision after a five-day family law trial heard before me from March 24 to 28, 2025.

[2] The Applicant, Louris Korie and the Respondent, Henri Korie, were married on September 1, 2002 and separated on July 1, 2022.

[3] The Applicant is currently 49 years old. She is self-employed as a lash artist. The Respondent is currently 55 years old. He has been employed for approximately 28 years by the Region of Halton.

[4] The parties have two children, P.W. and P.A. At the time of the trial, P.W. was 21 years old and P.A. was 17 years old. The parties agreed that no orders were necessary with respect to P.W. as a result of his age and stage in life.

[5] The parties’ most significant assets are the Respondent’s pension, the jointly-owned matrimonial home at 707 Upper Wentworth Street in Hamilton, Ontario, and the jointly-owned investment property at 796 Mohawk Road East in Hamilton, Ontario (the “Mohawk property”). The Applicant currently runs her lash business at the Mohawk property. The parties have resided together at the matrimonial home since separation.

[6] As the evidence unfolded during the trial, the parties reconsidered their respective positions and entered into partial minutes of settlement which included the following agreements:

• The parties shall share decision-making of P.A. It is anticipated that he will reside with both parties equally.
• The Applicant’s 2024 income is imputed at $30,000 and the Respondent’s 2024 income is imputed at $93,000 for ongoing child support and spousal support purposes.
• The Respondent will pay $600 in ongoing set-off child support and 65% of P.A.’s s.7 expenses. The commencement date for these payments will be determined by the court.
• The Respondent will pay $1,200 per month in spousal support, which is the high end of the Spousal Support Advisory Guidelines (Ottawa: Department of Justice Canada, 2008) (the “SSAGs”), and is approximately 50% of the parties’ NDI. The commencement date for these support payments will be determined by the court.
• The Respondent shall maintain extended healthcare benefits through work for his children and the Applicant.
• The Respondent shall secure child and spousal support with a $200,000 life insurance policy.
• The Respondent shall pay the Applicant an equalization payment of $201,604.21 with the method of payment to be determined by the court.
• The matrimonial home and the Mohawk property shall both be listed for sale and sold. The proceeds of each sale will be divided, subject to this court’s decision on the method of payment of the equalization payment.

Part Two – Issues

[7] The issues that remain in dispute and the parties’ positions on these issues can be summarized as follows:

• With respect to property, the parties are unable to resolve the form of payment for the equalization payment. The Respondent submits that the payment should be made via a Locked-In Retirement Account (“LIRA”) roll-over from his pension; the Applicant submits that she should be paid in cash from the proceeds of sale of the two homes. After trial, I also asked the parties for submissions on an additional possibility, which is that the equalization payment be made by the Respondent to the Applicant in installments pursuant to s. 9(1)(c) of the Family Law Act, RSO 1990, c F.3 (“FLA”).
• The Applicant claims certain monetary restitution on the basis of unjust enrichment from the Respondent. She seeks repayment of $60,000 which, she submits, is half of the $120,000 debt that the Respondent brought into the marriage; the Respondent disagrees that any such debt existed. The Applicant also seeks repayment for half the cost of various goods she purchased to renovate the Mohawk property during the marriage, totalling $20,720.05; the Respondent rejects this claim.
• With respect to support, the parties require the court to select a commencement date for payment of ongoing child and spousal support by the Respondent, and to determine whether the Respondent owes any retroactive child and/or spousal support. The Applicant submits that she is owed $26,762 in retroactive child support and $39,091 in retroactive spousal support, totalling $65,853 in total retroactive child and spousal support since the date of separation. The Respondent submits that there is no retroactive child and spousal support owing since he paid for all the expenses in the home and for the children since separation.
• Finally, the Applicant requests a restraining order. The Applicant submits that she needs a restraining order because she is afraid of the Respondent. The Respondent’s position is that there is no need for a restraining order given the history of the parties’ relationship and their imminent physical separation after the agreed-upon sale of the matrimonial home.

[8] Thus, at the conclusion of this five-day trial, the following issues remain for determination by the court:

• With respect to property:
  • What is the appropriate method for the Respondent to satisfy the equalization payment owing to the Applicant?
  • Is the Applicant entitled to relief on the basis of unjust enrichment?
• With respect to support:
  • Should the court make an order for retroactive child and/or spousal support? If so, in what amount?
  • On what date shall ongoing child support and spousal support commence?
• Should the court issue a restraining order?
• What costs, if any, should be ordered by the court?

Part Three – The Facts

[9] The Applicant was born in Syria and immigrated to Canada in 1999. She first resided in Montreal. At the time she immigrated to Canada, the Applicant spoke only Arabic and French. The Applicant’s entire family lived in Montreal.

[10] The Respondent is a lifelong resident of Hamilton. The parties met in December 2001. They met in Montreal through family members. The Respondent asked the Applicant to date, and they commenced a long-distance relationship with him in Hamilton and her in Montreal.

[11] The parties moved to Hamilton after their marriage on September 1, 2002. One of the primary reasons for this decision was because it made financial sense: the Respondent had a secure full-time job with the Region of Halton and the Applicant did not have a full-time job. In fact, the Respondent has been employed by the same employer since 1997.

[12] After marriage, the parties pooled their income into a joint account, which they used to pay for all of their expenses. The parties’ finances were completely mixed until separation. They jointly purchased a condo shortly after marriage, with the Respondent putting a $10,000 deposit on that condo. They later sold that condo and purchased the matrimonial home at a reduced price from the Respondent’s parents in or around 2003. There is currently a tenant residing in the basement of the matrimonial home.

[13] Both parties agreed that the move from Montreal to Hamilton was difficult for the Applicant. She spoke little English and did not have family in Hamilton. She did take an English as a second language course and transferred her retail job from La Senza in Montreal to Hamilton. Although she was designated part-time, she worked full-time hours.

[14] The Applicant became pregnant with P.W. in 2003. P.W. was born in November 2003. After taking a one-year maternity leave, the parties agreed that it made more sense for the Applicant to stay home with P.W. They decided that the Applicant would open a home daycare which would achieve the purpose of bringing in some income and allow the Applicant to be there for P.W. The Applicant opened this daycare and continued to operate it even after the birth of P.A. in 2007. The Applicant closed the daycare when P.A. entered junior kindergarten.

[15] After both children were in school, the Applicant attempted to pursue further education. She initially sought to become a paralegal, however, the parties could not afford the $10,000 tuition. When it became clear that attending paralegal school would not be possible, the Applicant decided to study makeup artistry, which despite her best efforts, did not prove to be a financially stable career choice. In or around 2016, the Applicant decided to pursue lash artistry and took training to become a lash artist. This is the career that the Applicant landed in.

[16] The Applicant was able to start her lash artistry business by renting a small room from a beauty salon. Unfortunately, the salon went out of business several months after the Applicant started her business. The Applicant then attempted to rent other space to continue her business. However, she found commercial rent to be too expensive.

[17] Eventually, the parties jointly purchased the Mohawk property in or around 2017. There were two purposes to the purchase of this property; first, it would be an investment (the Applicant described it as her “retirement”), and second, it would be a place from which the Applicant could operate her business. The parties contributed $60,000 in a downpayment from joint investments. The upstairs was converted into a lash salon suitable for the Applicant’s business and the basement was rented to a tenant.

[18] The Applicant says that the Respondent did not contribute to the renovations of the Mohawk property. She produced receipts at trial of the goods she purchased to renovate the Mohawk property. She says that the total cost of those renovations was $41,440.10. She claimed that she was entitled to repayment of 50% of that cost, or $20,720.05. In his evidence, the Respondent testified that although the Applicant purchased the items to renovate the property, he and his family members provided the labour for the renovation for free. The Applicant did concede elsewhere that the Respondent helped with minor repairs at the Mohawk property.

[19] In 2017, the parties purchased another investment property in Caledonia. The Applicant says she was the driving force behind this purchase. However, when it was time to purchase the property, the bank refused to put her name on title, and as a result, the Respondent became the sole owner of this property. The parties financed this purchase with the assistance of funds from the Respondent’s family and private financing, which the Applicant says she located. The Respondent collected the rental income from this property and used it to pay the expenses related to the home. This property was subsequently sold in 2021 at a considerable profit. The Respondent testified that the Applicant threatened to leave him if he did not agree to divide the proceeds with her. The Respondent says he complied with her demands and split the proceeds of the sale with the Applicant.

[20] The Applicant’s lash business did well until the COVID-19 pandemic hit. As the lash business was not deemed to be an essential service, the Applicant’s business closed in 2020. In 2021, the business opened and closed in accordance with various provincial health directives. It was not until 2022 that the business reopened. The Respondent remained employed at all times during the pandemic. He agreed that the Applicant’s business struggled financially during the pandemic.

[21] The financial arrangement just before the parties separated was as follows: the parties had a joint account in which they deposited their incomes to pay for family expenses. The Applicant collected the rent from the tenant at the Mohawk property. The income generated by the Mohawk property was generally sufficient to pay for most of the expenses on the property. The Respondent collected the rent from the tenant in the matrimonial home. The Respondent used the rent toward the expenses on the matrimonial home.

[22] Despite the parties’ respective responsibilities toward each property, at all times, the parties’ finances were intermingled. At one point in her evidence, the Applicant stated, in reference to the parties’ use of their respective lines of credit to purchase the various properties, “we were married, it did not matter”.

[23] The parties separated on July 1, 2022. After their separation, the parties continued to reside together in the matrimonial home. The Respondent sleeps on a mattress on the ground floor of the home. The Applicant sleeps upstairs with the children. The Applicant says she locks her door whenever the Respondent is present in the home. The parties agree that this situation cannot continue.

[24] The Respondent’s evidence is that since separation, he has paid for all the expenses related to the matrimonial home and the children’s expenses, while the Applicant has paid for all the expenses related to the Mohawk property through income from the tenant and her lash business. The Applicant agreed that she paid for all the expenses on the Mohawk property, however, she stated that she also contributed to the children’s expenses. She disputed the Respondent’s claim that he paid for all the children’s expenses. She further alleged that the Respondent removed her from their joint bank account a month before separation, causing her financial hardship. The Respondent denied this, stating that the Applicant asked to be removed from the account.

[25] One of the issues that dominated the trial, but which ultimately became moot was the Applicant’s income and plan after the sale of the matrimonial home. The Applicant stated that should both properties be sold, she would have no place to operate her lash business and as a result, her income would be effectively $0 for support purposes. She testified that she had not looked for other spaces to rent, however, she knew from her previous experience that she would not be able to afford commercial rent. She also testified that she would not consider working in retail because of her age and that except for the lash business, she is not qualified to do any other work. She said her business has not grown in the last two years because of the stress of the separation. She also said that she would be so stressed after the sale of the homes that it would be difficult for her to concentrate on starting a new lash business elsewhere.

[26] With respect to where she would live, the Applicant stated she had no plans and had not looked for an alternate residence because she did not know what her budget would be. She felt renting was not a good financial decision. From her evidence, it was clear that the Applicant wished to purchase another property which would allow her to generate rental income, support her lash business, and provide living space for herself and the two children. The Applicant also stated that she needed the equalization payment paid to her in cash so that she could purchase a new home.

[27] The Applicant is seeking a restraining order against the Respondent. She requests the restraining order to prevent the Respondent from being within 100m of her. She called two witnesses to support her request for a restraining order. The first witness was Sofia Charestan, the Applicant’s sister who currently resides in Montreal. She testified that the Respondent made comments directed at her that were sexually suggestive. Ms. Charestan admitted that she has not seen the Respondent since the last time he made comments of a sexual nature to her, which was approximately three years ago.

[28] The second witness called by the Applicant was Krystel Dufour. Ms. Dufour was the tenant at the Mohawk property for the last five years. She said that she was subjected to comments from the Respondent during the first year of her tenancy that were sexual in nature. She testified that this culminated in a call from the Respondent at night, where he allegedly asked to attend at her home alone for a home inspection. She also testified about an incident with a hose where the Respondent allegedly made sexual comments toward her. She said that she felt unsafe and ultimately called the Applicant and asked that the Respondent never speak to her again. The Respondent stayed away from Ms. Dufour for the next four years.

[29] The Respondent denied these incidents, explaining that they were misunderstandings. He also stated that he has not had any contact with Ms. Charestan or Ms. Dufour since it was made known to him that they did not want contact with him. He stated that neither the Applicant, Ms. Charestan, nor Ms. Dufour ever called the police on him and indeed he has no criminal history. The Respondent further stated that he has never been abusive to the Applicant, Ms. Charestan, or Ms. Dufour. As detailed further below, the Respondent submits that a restraining order is unnecessary and extremely intrusive on these facts, particularly since the parties have been able to live under the same roof for three years without incident.

Part Four – Assessment of Reliability & Credibility

[30] Other than the two witnesses called by the Applicant, the majority of the evidence in this trial came from the parties. While they agreed on many of the most essential facts, they differed on some major issues, most notably regarding their respective motivations and behaviours, and in particular their contributions to the family expenses post-separation. As a result, the credibility of each party needs to be considered.

[31] In Jayawickrema v. Jayawickrema, 2020 ONSC 2492, at para. 28, Jarvis J. summarizes the relevant considerations when assessing credibility and reliability as follows:

[28] As has been frequently observed, the assessment of witness credibility is an inexact science, impossible to articulate with precision. For example, a witness may impress the court with the coherence and logic, or common sense, of their narrative but be unreliable due to their interest in the outcome of the case or the lack of probative information. Or a witness may be so interested in a case that they are incapable of making an admission or facilitating the disclosure of information that they perceive as helpful to the other party and harmful to their case. These affect the weight to be given to that evidence. There is, quite simply, no one-size-fits-all template. Several of the many considerations relevant to the weighing and assessment of witness credibility and reliability, and relevant to his case, were comprehensively reviewed in Al-Sajee by Chappel J. who aptly observed that,

…the judge is not required by law to believe or disbelieve a witness’s testimony in its entirety. On the contrary, they may accept none, part or all of a witness’s evidence, and may also attach different weight to different parts of a witness’s evidence (see R. v. D.R., para 93; R. v. J.H., paras 51-56; McIntyre v. Veinot, 2016 NSSC 8, para 22). [Footnote omitted.]

[32] In Alsawwah v. Afifi, 2020 ONSC 2883, commencing at para. 103, Kurz J. wrote about rhetorical excess in family litigation. While that decision dealt with affidavit evidence on motions, some of the principles Kurz J. raised are relevant to the evidence in these proceedings. In particular, Kurz J. emphasized that evidence about a former spouse’s moral failings is rarely relevant to the issues before the court. And, importantly for this case, “exaggeration is the enemy of credibility”: see Alsawwah, at para. 108.

[33] During her evidence, it was clear that the Applicant had an overwhelming dislike for the Respondent. While he was testifying, the Applicant refused to look at the Respondent at all, choosing to turn the side of her face toward him during his entire testimony. In her evidence, the Applicant exhibited no discomfort or fear with the Respondent seated at counsel table. In fact, she was dismissive of him in almost every respect. She was dismissive of his contributions to the marriage. She was dismissive of his role with the children, expressing surprise that P.A. would want equal time with both of them. At one point, she called the Respondent a “professional liar”.

[34] It is my finding that the Applicant’s dislike of the Respondent impacted on her interpretation of events, leading to an unreliable and at times embellished re-telling of the facts. For example, with respect to the $120,000 loan that the Respondent allegedly brought into the marriage, the Applicant insisted that this debt existed even though she had little specific recollection of any conversations she had with the Respondent about it. Although she claims to have found out about the loan three months after the parties’ marriage, she provided no evidence as to how she attempted to resolve this issue during their lengthy marriage, nor did she provide any documentary evidence related to this debt. This is inconsistent with her presentation as the financially savvy person in the relationship. It appears that it was only after separation that this debt became a sore point. On the issue of the debt in particular, I found the Respondent’s evidence to be more compelling. I accept that the parties were living beyond their means during their marriage.

[35] Another example of the Applicant exaggerating or embellishing her evidence is with respect to her evidence about her ability to work post-separation. At all times, the Applicant took credit for the financial decisions made by the parties. This included the purchasing of the parties’ investment property in Caledonia, and the idea to purchase the Mohawk property for business and investment purposes. The impression the Applicant gave in her evidence was that of an intelligent and knowledgeable businesswoman. She described her business decisions with clarity and logic. Despite this presentation, the Applicant testified that she would have zero income after the matrimonial home and Mohawk property are both sold. While I accept that the Applicant may have a reduced income shortly after the properties are sold, it is difficult to reconcile the Applicant’s business savvy presentation with her insistence that she would have no income at all.

[36] I found the Respondent, on the other hand, to be forthright. He did not embellish or exaggerate his evidence. He made concessions that clearly did not advance his case. For example, he admitted that the Applicant’s move from Montreal to Hamilton was difficult for her, he admitted that the Applicant was the primary caregiver for most of the children’s early years, he admitted that the Applicant had an entitlement to spousal support, and he agreed that if the Mohawk property is sold, it would negatively impact the Applicant’s income. In summary, the Respondent appeared to have a more objective view of what happened during and after the marriage.

[37] As a result, where there was a substantial disagreement in the evidence between the Applicant and the Respondent, I accept the evidence of the Respondent.

Part Five – Property Issues

Method of Payment of Equalization Payment

[38] Although the parties agreed that there would be an equalization payment payable by the Respondent to the Applicant of $201,604.21, they disagree as to the method of payment.

[39] Sections 9 and 10.1 of the FLA set out the methods available to implement an equalization payment. The Applicant seeks payment of the equalization by cash pursuant to s. 9(1)(a) of the FLA. The Respondent seeks payment of the equalization via a rollover from his pension plan pursuant to s. 10.1(3) of the FLA. I also raised a third method of payment to the parties, which is payment of the equalization in instalments as contemplated by s.9(1)(c) of the FLA.

[40] With respect to the option of payment of the equalization in instalments, I considered the evidence presented at trial and the arguments of counsel. I will not be making this order as it will continue to tie these parties together, which is not in their interests, or in the interests of P.A. The parties have a toxic relationship, made worse by years of living in the same residence post-separation. They share children together. To impose a solution where one party would continue to have a financial obligation toward the other for years would only exacerbate this conflict.

[41] This then only leaves the options of paying the equalization payment to the Applicant as cash or through a pension rollover. As stated in VanderWal v. VanderWal, 2015 ONSC 384, at para. 11, there is no presumption or statutory onus that an equalization payment will be made by the transfer of a lump sum out of a pension plan. Rather, each case depends on its own facts and the factors set out at s.10.1 of the FLA need to be considered. Specifically, s. 10.1(4) of the FLA reads as follows:

Order for immediate transfer of a lump sum

(4) In determining whether to order the immediate transfer of a lump sum out of a pension plan and in determining the amount to be transferred, the court may consider the following matters and such other matters as the court considers appropriate:

1. The nature of the assets available to each spouse at the time of the hearing.
2. The proportion of a spouse’s net family property that consists of the imputed value, for family law purposes, of his or her interest in the pension plan.
3. The liquidity of the lump sum in the hands of the spouse to whom it would be transferred.
4. Any contingent tax liabilities in respect of the lump sum that would be transferred.
5. The resources available to each spouse to meet his or her needs in retirement and the desirability of maintaining those resources. 2009, c. 11, s. 26.

[42] The decision to order a lump sum transfer from a pension plan is a discretionary one and the listed factors should be considered in the context of the FLA’s primary goal, which is to achieve a division of assets that is fair to both spouses: see Best v. Best. As noted in Fortier v. Lauzon, 2017 ONSC 7503, at para. 54, aff’d 2018 ONCA 1086, the preamble of the FLA recognizes that one of its goals is to provide for the orderly and equitable settlement of the affairs of 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. In Fortier, the court was concerned that it was unfair that the father would, after 15 years of marriage, leave the marriage with a pension that he could not access for years as his main asset.

[43] One of the main considerations in cases where a transfer of a pension is being considered is whether the pension holder has access to any other liquid assets: see Gielen v. Gielen, 2023 ONSC 4157, at para. 45. While a pension holder cannot automatically force the recipient to accept a deferred payment to ease his own liquidity position (see Tupholme v. Tupholme, 2013 ONSC 4268), courts have noted that the fairness of the parties’ respective financial positions should be considered. As noted in Jackson v. Mayerle, 2016 ONSC 72, at para. 598(g), in some cases placing the parties in a position of equal liquidity will be very important as they both try to rebuild their lives.

[44] Regrettably, this issue was not well presented or argued by counsel. I received no detailed calculations of the parties’ respective cash flows upon the sale of both homes. I received no evidence as to the disposition costs applicable to the sale of both homes. I received no evidence about the capital gains tax rate to apply as a result of the sale of the Mohawk property. I received no evidence about the contingent tax liability to be applied to the equalization payment, which would be necessary information if a pension rollover is chosen as the method of payment.

[45] However, and having reviewed the evidence available, I am concerned that payment of the equalization payment in cash would be unfair in the circumstances. In this case, the parties were married for almost 20 years, clearly with the expectation that they would exit the marriage as equals. They intermingled their funds, invested jointly, and each devoted all of their financial resources to the family’s finances.

[46] In coming to the decision that a cash equalization payment would be unfair in the circumstances, I have considered the following:

a. The parties agreed that the Applicant is entitled to an equalization payment of $201,604.21.
b. The parties agreed in submissions that the approximate net proceeds of sale from the matrimonial home and the Mohawk property would be approximately $400,000 each.
c. According to the net family property statement provided by the parties, outside of the net proceeds from the sale of both properties, the Respondent has liquid assets (bank accounts and TFSAs) of $8,281.91 and the Applicant has $21,960.41.
d. The Respondent’s pension is valued at $496,799.59 at the date of separation. The parties agreed that the Respondent’s contingent tax liability on his pension is 20% (though no evidence was called on this point). The Respondent’s pension is 45% of his net family property.
e. The equalization payment payable by the Respondent is greater than 50% of his half of the net proceeds of sale from the two homes. In addition, although the parties failed to provide me with evidence as to the amount of the capital gains tax on the Mohawk property, the evidence from the Respondent is that the property has doubled in price since its purchase. I infer from this evidence that substantial capital gains tax will need to be paid from the sale of the Mohawk property, thereby further reducing the Respondent’s liquidity if he were to pay the equalization payment in cash.
f. Factoring in the $400,000 net proceeds of sale to each party, if the equalization payment is paid in cash, the Respondent would exit the marriage with less than 25% of the parties’ liquid assets. The Applicant would have greater than 75%.
g. The Applicant testified repeatedly that she would be unable to afford a home for herself and P.A. if she is forced to rely only on her half of the net proceeds of sale of the two homes. The Respondent would be even further disadvantaged in this regard if he is forced to draw on those proceeds to pay the Applicant her equalization payment.
h. According to the Respondent’s financial statement of November 26, 2024, he has debts of $101,245.94 (not including mortgages). Those debts will need to be serviced in cash.
i. The Respondent agreed to pay spousal support to the Applicant at the high end of the SSAGs, which is approximately equivalent to 50% of the parties’ net disposable income. The quantum and duration of spousal support is a factor in determining whether there should be a lump sum transfer of a pension: see Jackson, at para. 598(h).
j. The parties agreed that P.A. would share a residence with both the Applicant and the Respondent. Both parents should have the ability to provide P.A. with a relatively equal home. It would be unfair to leave the Applicant “pension rich and cash poor” in these circumstances.
k. The Applicant testified about her fear of not being able to retire in the future. Rolling over the equalization payment into a LIRA would surely contribute to giving her this security.

[47] Having reviewed the evidence, the arguments of the parties, and the relevant legislation and case law, I will order that the equalization payment be satisfied by a rollover from the Respondent’s pension to a LIRA for the Applicant. However, given the lack of evidence adduced as to the appropriate gross-up to be applied (the Applicant has a contingent tax liability with respect to the lump sum transfer of the pension), the parties are directed to either agree on a grossed-up number for the rollover, or if they are unable to do so, set a date before the trial coordinator to argue this issue before me, with appropriate evidence from an expert or other professional in affidavit format.

The Applicant’s Unjust Enrichment Claim

[48] Notwithstanding the fact that the parties settled on an equalization number, the Applicant requested that she be monetarily compensated $60,000 for half of the debt that the Respondent brought into the marriage and $20,366.36 for half of the renovation costs paid by the Applicant to renovate the Mohawk property. In essence, the Applicant seeks the remedy of quantum meruit on the basis of unjust enrichment.

[49] In Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 32, Cromwell J. confirmed that to establish unjust enrichment, a claimant must establish three elements: an enrichment of or benefit to the other party, a corresponding deprivation of the claimant, and the absence of a juristic reason for the enrichment. The three elements of this test were summarized as follows in Ryan v. Ryan, 2017 ONSC 1377, at para. 112:

a. First, for enrichment or benefit to the defendant, the defendant must have received and retained a tangible benefit from the plaintiff that "can be restored to the plaintiff in specie or by money." The contribution or benefit may include improvement of property: Sorochan v. Sorochan, at para. 31. This contribution typically takes the form of labour or capital.
b. Second, for corresponding deprivation, the plaintiff must show "not simply that the defendant has been enriched, but also that the enrichment corresponds to a deprivation which the plaintiff has suffered": Kerr v. Baranow, at para. 39. Courts have also described this as a requirement that there be a "direct nexus" between the plaintiff's deprivation and the defendant's enrichment: see e.g. Singer v. Schering-Plough Canada Inc., 2010 ONSC 42, at para. 111.
c. Third, for absence of juristic reason, it must be the case "that there is no reason in law or justice for the defendant's retention of the benefit conferred by the plaintiff, making its retention 'unjust' in the circumstances of the case": Kerr v. Baranow, at para. 40.

[50] The Applicant’s unjust enrichment claim for both the debt and the renovation costs cannot succeed. As noted above, the Applicant has not established on a balance of probabilities that the Respondent had brought into the marriage a $120,000 debt and therefore, she has not established that there was an enrichment or deprivation. In addition, the Applicant could have pursued the debt as a date of marriage deduction or alternatively to vary her share of the equalization payment. She did not do so. The Applicant cannot use unjust enrichment to effectively pursue a run-around to the equalization scheme as set out in the FLA.

[51] With respect to the renovation costs, I also find that the Applicant has not established her unjust enrichment claim. I accept that the Applicant’s renovation costs benefited or enriched the Respondent, thereby satisfying the first element of the test. The evidence provided by the Applicant was that the renovations she engaged in allowed the basement to be rented and the upper floors to be used for her lash business. The Respondent benefited from the Applicant’s lash business income and the income from the basement tenant.

[52] With respect to the second element of the test, the Applicant must show not only that the Respondent has been enriched, but also that the enrichment corresponds to the Applicant’s deprivation. On the evidence, I am unable to find any deprivation. The Applicant provided no evidence that she was deprived from an economic perspective. Rather, her contributions appear to be offset by the Respondent’s contributions, which include unpaid labour toward renovating the Mohawk property.

[53] I also find that the Applicant did not prove an absence of juristic reason. The Applicant is a joint owner of the Mohawk property. Both the Applicant and the Respondent contributed to the downpayment and upkeep of the property. Both are reaping the benefits of any property value increase. At all material times, the parties mixed their finances and expected that their mutual hard work would be rewarded equally. Given their mutual contributions, it would be inequitable to now attempt to look back and carve out certain expenses to be paid to the Applicant.

[54] Furthermore, even if an unjust enrichment claim is successfully established, the Ontario Court of Appeal has held that any monetary damages flowing from such a successful claim will be addressed through the operation of the equalization provisions under the FLA, including unequal division where necessary: see McNamee v. McNamee, 2011 ONCA 533; Martin v. Sansome, 2014 ONCA 14.

[55] It is only in rare cases that the equalization scheme provided in the FLA would not adequately address any successful unjust enrichment claims. Although dealing with the remedy of constructive trust, the words of McKelvey J. in Straub v. Straub, 2012 ONSC 3819, at para. 109, are equally applicable to claims for quantum meruit as a result of unjust enrichment:

[109] In my view, the statutory framework for equalization should be applied routinely, and it will be a rare case where a court will apply the constructive trust doctrines in situations which are governed by the statutory framework. There should be a high threshold before departing from the statutory guidelines. I also feel it is significant that the provisions of the Family Law Act have provisions which allow for an unequal distribution in cases where an equal distribution would be unreasonable. This reinforces my view that the law relating to constructive trusts has little relevance in cases which are governed by the statutory framework.

[56] I also repeat the words of Wilson J. in Ryan v. Ryan, 2017 ONSC 1377, at para. 170:

[170] Family law cases for married couples are difficult and draining. The provisions of the FLA are clear and provide consistency and predictability for litigants. Adding on the layer of "duelling quantum meruit" claims to the legislative scheme creates uncertainty, confusion, costly trials, and unpredictability.

[57] There are no rare circumstances in this case to deviate from the equalization scheme offered by the FLA. The enrichment alleged by the Applicant does not rise to the level of “unconscionability” as required by s. 5(6) of the FLA. Nothing in this case supports an unequal division according to s. 5(6). Indeed, when asked specifically, the Applicant conceded that she was not seeking an unequal division of the parties’ net family property. The Applicant’s unjust enrichment claims are therefore dismissed.

Part Six – Support

Retroactive Child and Spousal Support

[58] The Applicant seeks retroactive child and spousal support back to the date of separation on July 1, 2022, while both parties resided at the matrimonial home.

[59] With respect to retroactive child support, in D.B.S. v. S.R.G., 2006 SCC 37, at para. 5, the Supreme Court of Canada stated that a modern approach to retroactive awards compels consideration of all relevant factors and the circumstances of each case. As explained in D.B.S., these factors include:

a. Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
b. The conduct of the payor parent.
c. The circumstances of the child.
d. The hardship that the retroactive award may entail.

None of the above factors are decisive or take priority. Rather, the court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix: see D.B.S., at para. 99.

[60] In Kerr v. Baranow, 2011 SCC 10, at para. 207, the Supreme Court of Canada stated that similar considerations to those set out in D.B.S. are also relevant to deciding the suitability of a retroactive award of spousal support. However, in spousal support cases, the D.B.S. factors must be considered in light of the different legal principles and objectives that underpin spousal support. Of particular relevance to this case is the following, stated at para. 212 of Kerr:

[212] The comments of Bastarache J. at para. 113 of D.B.S. may be easily adapted to the situation of the spouse seeking support: “A [spouse] who underwent hardship in the past may be compensated for this unfortunate circumstance through a retroactive award. On the other hand, the argument for retroactive [spousal] support will be less convincing where the [spouse] already enjoyed all the advantages (s)he would have received [from that support]”. As for hardship, there is the risk that a retroactive award will not be fashioned having regard to what the payor can currently afford and may disrupt the payor’s ability to manage his or her finances. However, it is also critical to note that this Court in D.B.S. emphasized the need for flexibility and a holistic view of each matter on its own merits; the same flexibility is appropriate when dealing with “retroactive” spousal support.

[61] Consistent with the Supreme Court’s statement in Kerr, in many cases, no retroactive spousal support will be ordered where the parties reside together in the matrimonial home post-separation and the support payor covers the carrying costs: see, for example, Akinsola v. Akinsola, 2022 ONSC 6906, at para. 98, aff’d 2024 ONCA 592. However, each case turns on its own facts and whether retroactive spousal support is ordered will depend on whether the expenses paid post-separation are fair and reasonable in the circumstances. For example, in my view, retroactive spousal support may be payable if expenses paid are disproportionately low in comparison to the support obligation, or if the support payor severely restricts funds available to the recipient post-separation.

[62] The Applicant’s evidence is that she was removed from the parties’ joint bank account a month prior to the date of separation. She also says that she regularly paid for food and other everyday items for the children post-separation. She says that as a result of the Respondent’s actions, she was left in dire financial circumstances after the parties’ separation. Because of this, the Applicant asks for $26,762 in retroactive child support and $39,091 in retroactive spousal support, totalling $65,853 in total retroactive child and spousal support since the date of separation.

[63] The Respondent says that he was the person who paid for most of the expenses related to the home and children while both parties were living under the same roof post-separation. The Respondent says he was surprised by the Applicant’s announcement of the end of their marriage, and that it was the Applicant who removed herself from the parties’ joint accounts. The Respondent denies the Applicant’s allegations that he failed to purchase enough food for the children and that he did not pay for any of the household expenses. He says that he did not pay the Applicant child or spousal support post-separation because he could not afford it as he was shouldering most of the family expenses.

[64] I accept the Respondent’s evidence. While the Applicant did take the children to restaurants and paid for some minor expenses post-separation, I accept that the majority of the expenses relating to the children and to the matrimonial home were paid by the Respondent. Given his income, the Respondent had little ability to pay support after those expenses were paid. In addition, I question the Applicant’s assertion that she was in dire financial circumstances, given her ability to fund travel post-separation, including to British Columbia, New York State, Turkey, Montreal, Niagara Falls, Israel, and Tobermory. Finally, the Applicant produced no evidence that her current financial circumstances are substantially different from when the parties separated. I note that her financial statement of November 8, 2024, which her counsel filed as an Exhibit at trial left the “today” values completely blank.

[65] As a result, there will be no retroactive child or spousal support payable by the Respondent to the Applicant.

Commencement Date of Ongoing Support

[66] The parties intend to sell the matrimonial home as soon as possible. For the reasons set out above, the commencement date for the payment of child and spousal support shall be the 1st day of the month following the closing date for the sale of the matrimonial home. The Respondent shall continue to pay all the expenses on the matrimonial home and the children’s expenses to the closing date.

Part Seven – Restraining Order

[67] The Applicant’s request for a restraining order is made pursuant to s. 46 of the FLA.

[68] Section 46 of the FLA reads as follows:

Restraining order

46 (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

(2) A restraining order under subsection (1) may be made against,

(a) a spouse or former spouse of the applicant; or

(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time.

(3) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.
2. Restraining the respondent from coming within a specified distance of one or more locations.
3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
4. Any other provision that the court considers appropriate.

[69] The legal principles for the court to apply in determining whether to grant a restraining order can be summarized as follows:

a. Restraining orders are serious and should not be ordered unless a clear case has been made out: see Ciffolillo v. Nieweglowski, 2007 ONCJ 469.
b. Courts should not order restraining orders in borderline cases just to be cautious. That ignores the test and the onus of proof: see A.H. v. M.T., 2023 ONSC 2356.
c. A restraining order is serious, with criminal consequences if there is a breach. It will also likely appear if prospective employers conduct a criminal record search. This could adversely affect a person’s ability to work. It may affect a person’s immigration status. See: F.K. v. M.C., 2017 ONCJ 181.
d. Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds for the person to fear for his or her own safety or for the safety of their child”: see McCall v. Res, 2013 ONCJ 254.
e. The test for a restraining order is both objective and subjective. The legislation itself makes that clear, as an entirely subjective test would have no use for the words “reasonable grounds” as a qualifier to the fear(s) expressed by the requesting party. See: A.H. v. M.T.; McGowan v. McGowan, 2018 ONSC 5950.
f. In borderline cases, the court must consider what other protections may be available if a restraining order is not granted: see D.C. v. M.T.C., 2015 ONCJ 242; M.H.S. v. M.R., 2021 ONCJ 665.

[70] The evidence in this case does not justify a restraining order. The Applicant’s complaints about the Respondent do not support a finding that there are reasonable grounds for the Applicant to fear for her own safety. There was no evidence of a pattern of harassment or other behaviour that put the Applicant’s safety at risk. The parties lived together in the same home for almost three years after separation, including when disputes arose relating to the children. I note that the parties were able to cohabit in the same home during this five-day trial, without any evidence of significant conflict. The Applicant did not ask the court to make an exclusive possession order pending the release of this trial decision.

[71] The reality is that once the matrimonial home is sold, neither party will have any reason to associate with the other. Also, the partial minutes of settlement entered into by the parties include a no-contact clause and there is no evidence that the Respondent would breach a court order. This is not a compelling case for a restraining order and I am concerned about the potential criminal consequences that may arise with a breach of such an order.

[72] As discussed above, the Applicant’s sister and the current tenant at the Mohawk property testified to perceived harassment from the Respondent. I found the evidence from both of these witnesses to be vague on details. More importantly, when asked how they addressed their discomfort, they both indicated that they told the Applicant and never interacted with the Respondent again. I infer from this that the Respondent was able to respect the boundaries set up by both witnesses and able to avoid further confrontation, without a court order.

[73] For the above reasons, the Applicant’s request for a restraining order is dismissed.

Part Eight – Costs

[74] Modern costs rules are designed to foster four fundamental purposes: (1) to partially indemnify successful litigants, (2) to encourage settlement, (3) to discourage and sanction inappropriate behaviour by litigants and, (4) to ensure that cases are dealt with justly under r. 2(2) of the Family Law Rules, O. Reg. 114/99 (the “Rules”): see Serra v. Serra, 2009 ONCA 395, at para. 8; Mattina v. Mattina, 2018 ONCA 867, at para. 10.

[75] Rule 24(3) of the Rules creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs: see Sims-Howarth v. Bilcliffe, at paras. 1-2. To determine whether a party has been successful, the court should take into account how the order or eventual result compares to any settlement offers that were made: see Lawson v. Lawson, at para. 7; Reichert v. Bandola, 2024 ONSC 4573, at para. 13.

[76] A successful party who has behaved unreasonably during a case may be deprived of costs: r. 24(7) of the Rules. In deciding whether a successful party has behaved unreasonably, the court may consider the party’s behaviour in relation to the issues from the time they arose, the reasonableness of any offer the party made, and any offer the party withdrew or did not accept: r. 24(8) of the Rules.

[77] Rule 24(14) sets out factors that the court may consider in setting the amount of costs:

(a) the reasonableness and proportionality of the following factors, as applicable, as they relate to the importance and complexity of the issues in the step:
(i) each party’s behaviour,
(ii) the time spent by each party,
(iii) any written offers to settle, including offers that do not meet the conditions set out in subrule (12) or the requirements of rule 18,
(iv) any legal fees, including the number of lawyers and their rates,
(v) any expert witness fees, including the number of experts and their rates,
(vi) any other expenses properly paid or payable; and
(b) any other relevant matter.

[78] The Respondent was completely successful on the disputed items remaining before the court. His offer to settle was also substantially consistent with the order made by the court on those issues. However, the Applicant’s most recent offer to settle more closely reflects the final partial minutes of settlement agreed to by the parties as the trial progressed. In some cases, the Applicant’s offer to settle was less favourable to her than what the parties eventually settled on during the trial. Therefore, it can be said that the Applicant adopted a reasonable position on many of the issues that were disputed at the start of the trial, and had the Respondent accepted those terms prior to the commencement of the trial, trial time and costs would have been reduced. As a result, I conclude that success was divided in this case.

[79] With respect to the parties’ behaviour, I was disturbed by the leading of inflammatory evidence of sexual misconduct by the Applicant on the issue of the restraining order. The Applicant’s request for a restraining order was wholly unfounded on the evidence. I find that some costs should be paid for the wasted preparation and court time with respect to this claim.

[80] The Respondent claims partial indemnity costs of $16,396.41, inclusive of disbursements and HST. Having considered the divided success as well as the Applicant’s unreasonable conduct in advancing her restraining order claim, I find that a fair and just cost order in these circumstances is that the Applicant pay to the Respondent costs of $4,000 inclusive of HST.

Part Nine – Order and Conclusion

[81] As a result of the foregoing, the court orders as follows:

1. Order to go pursuant to the Minutes of Settlement signed March 21, 2025 and March 27, 2025.
2. The equalization payment of $201,604.21 shall be made via a rollover from the Respondent’s pension to a LIRA for the Applicant. The parties shall agree to a grossed up amount to be transferred to the Applicant having regard to her contingent tax liability. Should the parties be unable to agree to a number, they shall schedule a date with the trial coordinator to argue the issue before me. The parties shall file affidavits with expert or other professional evidence to support their positions.
3. The Applicant’s claims for unjust enrichment are dismissed.
4. The Applicant’s claims for retroactive child and spousal support are dismissed.
5. Child support and spousal support payable by the Respondent shall commence on the 1st day of the month after the closing date of the matrimonial home. The Respondent shall continue to pay all the expense on the matrimonial home and the children’s expenses to the closing date.
6. The Applicant’s claim for a restraining order is dismissed.
7. The Applicant shall pay the Respondent costs of $4,000.00 inclusive of HST.

Law J
Released: May 6, 2025