Dyck v. Dales, 2025 ONSC 2874
Court File No.: 504/21
Date: 2025-05-13
Court: Superior Court of Justice – Ontario
Location: Welland
Parties:
Sharon Ruth Dyck, applicant
Malcolm Fraser Dales, respondent
Before: J.A. Ramsay
Counsel:
Marlene VanderSpek for the applicant
Richard C. Corbett for the respondent
Heard: 2025-05-13
Endorsement
Background
[1] The respondent moves for partial summary judgment under Rule 16(1) of the Family Law Rules, or for a decision on a question of law under Rule 16(8). Maddalena J. gave leave to bring the motion on August 23, 2024. The parties were married in 2008 and separated in 2019. The respondent husband seeks a ruling that an award to the wife for pay equity falls into her net family property.
[2] The affidavits of the parties, which I give the parties permission to file, show that on September 20, 2018, the Human Rights Tribunal found the Ontario government liable for payment of increased back wages to midwives on the basis of pay equity. On February 19, 2020, it ruled that the amount of compensation would represent 20% of past wages plus $7,500 for injury to dignity. The applicant received a payment of $157,498.42. The husband submits that this amount, less the award for injury to dignity, should be included in net family property. He excludes amounts that reflect wages that should have been earned after separation. The award was upheld on judicial review. The Tribunal ordered a study which may result in payments in future. The respondent would include any future amounts that are related to pre-separation wages.
[3] The applicant has filed a table which shows the breakdown of the amounts awarded. She has also filed the affidavit of her accountant, who confirms that the amounts, less the injury to dignity award, were taxable in the years to which they applied, or, at her option, the year in which she received them.
Legal Framework
[4] The applicant submits that the respondent has not met the test for summary judgment because there is a genuine issue for trial. She also submits that he has not met the test for a final order on a question of law. Rule 16(12)(a) provides:
(12) The court may, on motion,
(a) decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs …
[5] A decision on this point will not dispose of the case, but it should dispose of part of the case. I do not see how it can fail to shorten the trial substantially. The amount in question is not insignificant. Resolution of the property question will affect spousal support. Spousal support can depend on the disposition of equalization. Equalization does not, however, depend on spousal support. I agree with Maddalena J. that the motion involves legal issues the resolution of which may help the parties move forward. The treatment of the pay equity award has been an obstacle to settlement.
Statutory Exclusion
[6] As to the issue for trial, the applicant relies on s.4(2) 3. of the Family Law Act, which provides:
(2) The value of the following property that a spouse owns on the valuation date does not form part of the spouse’s net family property:
3. Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of guidance, care and companionship, or the part of a settlement that represents those damages.
Case Law
[7] It seems clear from the case law that an award which is meant to reflect wages that would have been earned before separation are included in net family property: In Vanderaa v. Vanderaa, Leitch J. said of a motor vehicle damages award:
“Compensation for a wage loss which accrued during a period prior to the date of separation is sharable property. Such damages are not paid for the injury itself and are paid to replace lost wages and, in essence, are income replacement and should be sharable to the extent that they replace income that would have been earned but for injuries sustained prior to the date of separation.”
[8] In Purcell v. Purcell, Hockin J. came to a similar conclusion about a pay equity settlement which resulted in a payment long after separation, but for a period before separation. Perkins J. criticized Purcell in Marquardt v. Marquardt (1996), 19 O.T.C. 69, because the right to compensation did not exist at the time of separation. That consideration would not apply here because the right to compensation existed before separation, although the amount was determined, and the funds awarded after separation.
[9] Cases have not included awards or settlements in net family property in various situations, such as severance awards that include an incentive payment. Perkins J. cited a number of those cases in Marquardt.
[10] In Slack v. Slack, [2001] O.J. No. 5115, Polowin J. suggested a test to determine whether an award is excluded from property:
- How does the entitlement arise? Is it a right that has some degree of certainty attached such as that defined by statute or contract or is it dependent on the conduct or motive of a third party such as wrongful dismissal or the establishment of an attrition policy by an employer.
- Is the right one of mere entitlement if certain conditions are met or one that is already crystallized at the relevant time, for example, the date the employment was actually terminated.
Application to the Facts
[11] In the present case, the right arises with certainty. It is the result of a ruling by a tribunal. And it is one which crystallized before separation. Whether it crystallized when the work was done or when the Tribunal decided liability, it crystallized before separation. It is fairly simple. The Human Rights Tribunal in effect ruled that the applicant should have earned more for the work she did before separation and ordered the government to increase her pay retroactively. The award is the fruit of her work. As such, it is property. The payment to the applicant, less amounts attributable to injury to dignity and amounts attributable to work after separation, forms part of the applicant’s property. A trial is not necessary to decide this question and there is little scope for inconsistent decisions.
[12] The amounts are readily ascertainable and have, apart from future adjustment based on the study, already been ascertained. The applicant received $157,490.42. If $7,500 is deducted for injury to dignity, $867.35 for interest and $10,085.58 for post-separation work, that leaves $139,039.49. On receipt of the money the applicant incurred an additional $58,952 tax liability of which some (I estimate $3,000 on the evidence I have) is attributable to post-separation income. $139,039 - $55,952 = $83,085. Accordingly, the amount to be included in net family property is $83,085.
Order
[13] I make the following final order under the Family Law Act:
a. The pay equity money received by the applicant, Sharon Ruth Dyck, is found to be $83,085 and is declared to form part of the applicant’s net family property within the meaning of section 4 of the Family Law Act.
[14] I leave to the trial the question of whether any adjustment on account of the tribunal-ordered study should be included in net family income.
[15] Having heard from the parties on costs I order the applicant to pay costs to the respondent fixed at $3,500 forthwith.
J.A. Ramsay
Date: 2025-05-13