Reasons for Decision

Background Facts

The parties were married on February 27, 2008 in Nigeria. The parties have three children.

Prior to the start of this trial, the parties had resolved the parenting issues, ongoing child support starting on June 1, 2025, and spousal support. The parties had also agreed that while the Applicant was the only party on title to the investment property located in Brantford (“the Brantford property”), the Respondent had a 50% beneficial interest in that property.

On the second-last day of trial, the parties resolved the issues of listing and selling the matrimonial home (“the Algoma Drive property”) and investment property (“the Brantford property”) and resolved the issue of retroactive child support owing by the Respondent between October 2022 and May 31, 2025.

The following were the outstanding issues and questions to be determined at trial:

a. What was the date of separation? The Applicant claimed that it was June 15, 2021, and the Respondent claimed that it was January 15, 2022.

b. Did the Applicant receive repayable loans from her two siblings in the amount of approximately $1,800,000 during the marriage?

c. Which party’s account of the various balances for assets and liabilities on the date of separation prevail?

d. What equalization payment is owing, if any?

e. Are there post-separation adjustments owing from one party to the other that need to be accounted for?

f. Does the Respondent have a corresponding claim for occupation rent?

Date of Separation

The parties each provided viva voce evidence on the issue of the date of separation on the first day of trial. It was agreed that the Court would first determine this issue to ensure the balance of the trial could be focused and save time and expense.

After hearing the evidence, reviewing the Applicant’s Affidavit and the exhibit filed by the Respondent, the Court found that the date of separation was June 15, 2021. The parties were advised of this decision on May 28, 2025, with reasons to follow. These are the reasons.

The evidence of the parties during this bifurcated hearing was strikingly similar. It was their interpretation of when the relationship had officially ended when they departed.

The Applicant took the position that the parties started living separate and apart in the matrimonial home on June 15, 2021. From that date, the parties had ceased all communication other than what was necessary for the children. The physical separation was apparent. They did not share meals, they did not converse casually and did not engage in daily routines together. The Respondent began cooking and buying his own food. They no longer made joint financial decisions and were living as roommates.

Both parties testified that their relationship began to break down in early 2021. There was tension. The Applicant was feeling overwhelmed with the responsibilities that she was carrying. She was taking care of the children, working full time, doing courses, cooking for the family and taking care of the home. The Applicant felt that the Respondent was not only leaving her with this unbalanced burden; but he continued to have unrealistic expectations of her and how much she should be doing to ensure that his needs were taken care of.

The Respondent claimed to have been helping more with the children than the Applicant described, however, he testified that he was quite oblivious to the Applicant’s struggles. He testified that he heard about her complaints from the other people residing in their home in early 2021. He wished he had heard them directly from the Applicant.

In any event, once he became aware, the Respondent claimed that he did make efforts to be more supportive in the spring of 2021; however, the parties were not communicating effectively.

Things came to a head in June 2021, when the Respondent attempted to initiate physical intimacy with the Applicant. She rejected him and, in response, the Respondent started sleeping in a separate room. The Respondent never returned to the marital bed, and he started making his own food. From the Respondent’s perspective, this was only a temporary situation and not an indication that the relationship was over.

The Applicant testified that they had disagreements like this in the past, however, they would come together within a short time to discuss them and work things out. This time was different. They did not speak about the relationship; they only spoke out of necessity and with respect to the children.

From the Applicant’s perspective, the Respondent made no efforts to make the relationship work. He disengaged and she felt that the relationship was over.

The Respondent testified that the parties continued to attend church each Sunday with the children after June 15, 2021. The Applicant denied that the parties had attended any social events together. Both parties said that they did not speak to other people about the state of their relationship, as it was a private issue between them.

Because the situation was not improving, the Respondent decided to leave the matrimonial home and he sent a text message to the Applicant on January 15, 2022 advising her of this decision. The text message was marked as an exhibit, however, it was undated. The Applicant did not dispute that it had been sent on the date claimed.

Law: Date of Separation

From Madsen J. in Kassabian v. Marcarian (2025 ONCA 239):

I would endorse the approach taken by Chappel J. in Al-Sajee in adopting the Supreme Court of Canada’s list of factors in M. v. H., [1999] 2 S.C.R. 3, that are relevant to the existence of a conjugal relationship as also relevant to spousal separation. M. v. H. refers to Molodowich for the “generally accepted characteristics of a conjugal relationship” as including shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple: para. 59. These elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal.

I would add, however, that when it comes to the timing of spousal separation, the element of change should be emphasized. That is, it is the differences or changes in the characteristics of a conjugal relationship at the alleged separation date – changes in shared shelter, sexual and personal behaviour, services, social activities, economic support, children and societal perception of the couple – that best serve to guide the court in fixing the date of separation or valuation date.

At the same time, where the issue is date of separation or valuation date as opposed to determining the existence of a conjugal relationship as framed in Molodowich, I would add to the list of potentially relevant considerations the formal steps taken to end the relationship, as well as any steps taken to resume cohabitation.

I would consolidate the list of relevant factors as follows. The categories necessarily overlap and are not exhaustive:

• Nature of the relationship
• Financial arrangements
• Interaction with third parties
• Formal steps taken to end the marriage or relationship
• Any steps taken to resume cohabitation

Analysis and Conclusion: Date of Separation

Neither party brought the Court’s attention to tax returns, Notices of Assessment, nor other communication between the parties that would have supported one party’s narrative over the other.

The conflicts in the parties’ narratives were relatively minor in the analysis of determining the date of separation.

This is not a date upon which the parties must decide together. One party can decide that the relationship is over. Through their words and their actions, it was clear that the relationship had broken down in the months leading up to June 2021 and that on June 15, 2021, the parties had demonstrated that they were no longer making efforts to repair it.

While the Respondent saw this as a temporary situation, the Applicant viewed it as the end of the relationship. That is sufficient reason for the Court to find that the date of separation was June 15, 2021.

Thereafter, there was no evidence of reconciliation. The parties taking their children to church is not determinative. The decision of the Respondent to leave the home on January 15, 2022 actually supported the Applicant’s position. It was clear to him that there was no going back and that he needed to extricate himself from that long-standing situation.

Equalization

Did the Applicant Receive Repayable Loans from Her Two Siblings in the Amount of Approximately $1,800,000 During the Marriage?

The Applicant’s Evidence

The Applicant claimed that she received loans from her siblings, Bamidele Banjo and Jesukemi Banjo-Jegede. The loans, she said, were provided on specific dates, for specific purposes. They were supported with written agreements, signed by the parties to the loans with 5% interest applied per year for most of the loans. Full repayment was expected, and she testified that she had started to repay her sister in 2023 (after separation).

The Applicant claimed that she had been solely responsible for the financial burdens incurred during the marriage. As a result, she sought the assistance of her family in the form of loans to pay for the parties’ engagement and wedding, paying their rent, to purchase property, to do renovations and to fund the family’s immigration related costs.

The Applicant testified that in the Nigerian culture it was customary for family members to lend each other money. Usually, the loans were not put to writing unless through a bank or other similar institution, however, because the Respondent was not close with her family, they did not trust him. She testified that the Respondent had not spoken to her siblings for “years” and this resulted in her siblings wanting to put the loans in writing.

While the terms of the loans were in writing; the Applicant testified that they could be modified – such as not expecting interest to be paid. The Applicant was emphatic that the loans were not gifts. While the Applicant admitted that she did not show the Respondent the loan agreements as they were signed, she insisted that he was aware of all the negotiations and that she left the documents where he could see them, if he wanted to.

They purchased properties with the money. The matrimonial home was purchased as a pre-construction property and the Respondent did not contribute toward the costs, she claimed. The Applicant used loan funds in the amount of $80,000 for the closing and the parties also used equity from the sale of their previous house located in Woodbridge.

The Alleged Loans

There were a number of loan agreements filed as exhibits at trial, specified below. Each agreement, the Applicant testified, had been drafted by lawyers and they were agreements between herself and her brother or sister. There was no collateral attached to the loans because they were family and they trusted each other (the Applicant’s testimony, that the loans were only put to writing due to a lack of trust in the Respondent, conflicted with this testimony).

The Applicant insisted that each time she borrowed money from her siblings she discussed the plan with the Respondent, however, she testified that he was “negligent” about this type of thing.

Loans from the Applicant’s Brother (listed by the date of the alleged agreement):

• July 25, 2010: The Applicant claimed to have borrowed 1,800,000 Naira (Nigerian currency) from Mr. Banjo. The parties agreed during the trial that converting this amount to CAD was about $15,559.70. This loan was to assist with paying rent for the parties’ apartment.
• February 25, 2010: The Applicant claimed to have borrowed 5,000,000 Naira from Mr. Banjo. The parties agreed during the trial that converting this amount to CAD was about $42,545.70. These funds were used to cover costs associated with the parties’ engagement and wedding. While the wedding had taken place two years prior to the loan agreement being signed, the Applicant testified that this was because the parties had not started to repay the loan and they were relocating to Canada. Interest was to be changed on this loan, however, the Applicant and her brother testified that he would not be charging her interest.
• December 2, 2010 (noted on the document to be a “sequel to initial loan agreement in November 15, 2008”): The Applicant claimed to have borrowed 5,000,000 Naira from Mr. Banjo. The parties agreed during the trial that converting this amount to CAD was about $57,091.47 (it is unclear to the Court why this amount varied from the February 25, 2010 conversion – the Court did not inquire as the parties agreed to this figure). These funds were used to cover the processing costs of the parties’ Canadian permanent residency process and other immigration related costs. The Applicant testified that this was a “sequel” because she had received the loan in November 2008.

Loans from the Applicant’s Sister (listed by date of the alleged agreement):

• January 1, 2012 and monthly thereafter: The Applicant claimed to have borrowed $5,000 CAD per month, for a total of $828,942.78 from her sister, Ms. Banjo. She said she used this money to pay the mortgage, property taxes, utilities. She claimed that the loan was repayable at 5% interest in her Affidavit, however, it was established at trial that no interest was payable on this loan.
• January 11, 2012: The Applicant claimed that her sister loaned her $80,000 CAD for the downpayment on an investment property. She claimed that the loan was repayable at 5% interest.
• May 15, 2015: The Applicant claimed that her sister loaned her $120,000 CAD for the downpayment on the matrimonial home, with 5% interest payable.
• May 2, 2018: The Applicant claimed that her sister loaned her $94,583.35 CAD for the construction of a basement, with 5% interest payable.
• May 21, 2019: The Applicant claimed that her sister loaned her $51,688.25 CAD for basement renovations, with 5% interest payable.
• September 5, 2019: The Applicant claimed that her sister loaned her $120,000 CAD for closing costs and upgrades for the investment property located in Brantford, which was a pre-construction purchase, with 5% interest payable.
• November 7, 2020: The Applicant claimed that her sister loaned her $103,923.50 CAD for more basement renovations, with 5% interest payable.

Evidence About the Alleged Loans

The Applicant testified that the Respondent was the one who told her to get a loan from her brother and to ask him for help.

She claimed that her brother had made numerous demands for repayments of the loans and that all of his requests were verbal, not in writing. Her brother stated the same in his testimony. The Applicant claimed to have made some repayments totalling around $50,000 to her brother, however, she did not file any documentation at trial to support this claim.

The Applicant described a very complex currency exchange system that involved anonymous third parties for the transfer of funds from her siblings in Nigerian currency (Naira) to her account in CAD. While she claimed to have received cheques on occasion, she claimed that it was expensive to convert Naira to Canadian dollars. Because of this, there was a large Nigerian community on Facebook where they would communicate when they needed funds exchanged. She explained, where a party had Naira, and needed CAD, the parties would do an exchange. The Applicant claimed that her siblings would give the funds to someone in Naira and then she would receive the CAD from that person. At other times, the Applicant testified that the funds would be taken from her brother’s bank account and deposited into hers, or the other way around.

The Applicant did not file a single cheque, wire transfer, Affidavit or any other supporting documentation to demonstrate that any money had been removed from either of her siblings’ bank accounts, nor deposited into her account in association with the alleged loan agreements. There was not a single text message, email, letter, money order, bank draft or piece of communication with any anonymous third parties whom she claimed had facilitated the transfer of approximately $1,800,000 to her over a 10 year period.

The Applicant claimed that she was unable to secure records from the Canadian banks that were more than five years old. However, she also claimed to be continuing to receive $5,000 CAD per month from her sister leading up to trial (or at least until 2022 – the evidence was inconsistent). Other than a few small etransfers the Applicant claimed to have sent directly to her sister in 2023, no documentation was provided to show that any money had changed hands.

The loan documents themselves, although prepared by different people over a long period of time, looked identical and used similar language in each. The font was the same, the formatting and the language used was the same.

The Applicant claimed that this must have been a standard loan agreement in Nigeria. She did not call any of the lawyers that were listed on the agreements, and who purportedly prepared them, as witnesses to the trial and the Court was not provided with any independent evidence to support the Applicant’s contention that this was a “standard form.”

The formatting of the loan agreements raised suspicion about their authenticity. They did not appear to be formal documents. They looked like they were prepared using Word or a similar word processing program and effectively “copied and pasted” with changes made to include who had prepared the agreements, the amounts loaned, the dates and named witnesses. They each had a cover page that looked to be prepared in a manner that could be done with any Word processing program – and the cover pages were virtually identical, although purportedly prepared by different people.

Bamidele Banjo – the Applicant’s Brother

Mr. Banjo resided in Nigeria and testified virtually. He also provided Affidavit evidence.

Copies of loan agreements were filed as exhibits. No evidence was provided through Mr. Banjo to support the claims made in terms of cheques that had been written, cashed or proof of repayment with evidence of bank transfers.

No supporting documents were provided to demonstrate that Mr. Banjo had the financial capacity to “loan” his sister substantial amounts of money.

Mr. Banjo’s testimony echoed that of the Applicant and their sister. Except he claimed that the witnesses to the loans with him were from the legal department of his business, not friends, as the Applicant claimed. He also testified that he would not seek to collect the interest reflected on the loan agreements.

In terms of repayment, Mr. Banjo testified that he had discussed repayment with the Applicant from time to time verbally and that she had made some small payments. He described the Applicant as a dependable sister who knew that she would need to repay him.

In cross-examination, Mr. Banjo acknowledged that it was difficult to enforce loan agreements with family. He testified that he did not maintain records because he did not give them much thought because the loans were for his sister. He said he sent a cheque to the Applicant in 2008, however, no evidence of this was provided at trial to support this claim.

There was a question about Mr. Banjo having loan funds deducted from his salary, which he agreed had occurred. When he was asked whether he had disclosed his business records to show these deductions, he stated that he did not.

Jesukemi Banjo-Jegede – The Applicant’s Sister

In her testimony, the Applicant described her sister as a “good sister” who had always been there for her. She provided loans to help the parties purchase properties, improve the properties and pay down their mortgage. In particular, the Applicant testified that her sister sent her $5,000 per month, every month, since 2012.

The Applicant testified that her sister started to make demands for repayment when the parties had gotten on their feet and started earning income in Canada. The Applicant testified that she would repay her sister by giving her friend CAD and then her friend (unnamed) would provide her sister with Naira. However, there were also etransfer receipts filed as exhibits.

The Applicant claimed to have sent payments to her sister in Naira on February 2, 2023, June 9, 2023, October 30, 2023, November 3, 2023, November 6, 2023, December 1, 2023, April 12, 2024, April 26, 2024 and May 31, 2024. These payments were made using etransfers. The Respondent did not believe the receipts to be authentic. The Applicant did not explain why she began to use etransfers in 2023 and 2024, rather than continuing to use friends and third parties to convert the funds.

The Applicant acknowledged that she had an account with one of the banks used for the etransfers, namely, Guaranty Trust Nigeria, however, she said that it had only been used to repay the loans. The Applicant did not disclose any bank records related to this account.

The Applicant testified that she and her sister would sign the loan documents at the same time virtually with each having a witness present. Her sister was in Nigeria, and she was in Canada. They would exchange the documents and sign the other copy.

Ms. Banjo-Jegede resided in Nigeria and testified virtually. She also provided Affidavit evidence.

Her sister corroborated this narrative when she testified over Zoom at trial and provided similar testimony as Mr. Banjo.

With respect to her December 21, 2022 Affidavit, Ms. Banjo-Jegede, confirmed its authenticity and the accuracy of its contents.

In her 2022 Affidavit, and in her testimony, Ms. Banjo-Jegede, provided sworn evidence that she had loaned the Applicant money that had be disbursed to her through a “third party that need [sic] naira in Nigeria and have Canadian dollar in Canada.” The 2022 Affidavit, and her testimony claimed that she would give these third party’s Naira and in her Affidavit she claimed that “they [illegible] [the Applicant] Canadian dollar through Interac, cash, transfer, cheque or draft lodgments.”

She claimed to have sent funds to the Applicant in the amount of $5,000 Canadian, every month between January 2012 and June 23, 2022, totaling $625,000 and, with interest, totaled $828,942.

The Applicant testified that she continued to put extra payments toward the mortgages using monthly loans that she continued to receive from Ms. Banjo-Jegede leading up to trial. The Applicant’s testimony conflicted with her sister’s testimony and the 2022 Affidavit.

The Applicant was given repeated opportunities in cross-examination to correct this evidence. She was challenged about the alleged repayments she claimed to have sent to her sister in 2023 and 2024 and how it made little sense for her sister to send her $5,000 per month and then the Applicant would just return some of the money. Despite the illogic of such an arrangement, the Applicant steadfastly maintained that this was the arrangement and that she continued to receive funds from her sister leading up to trial that she had put toward the mortgages.

Existence of the Alleged Loans

The Applicant claimed that the Respondent was aware of the loans despite the fact that he “never communicated directly with [her] siblings due to long-standing family tensions…” She claimed that the parties had discussed the loans, and he was aware of how the funds were being used because they enjoyed the benefits of the money.

The Applicant claimed that the Respondent benefitted from the loans because he resided in the properties, used the renovated spaces, and benefitted from costs of the wedding celebration and immigration costs.

The Applicant claimed that the Respondent promised to contribute toward the repayment once he secured a better paying job.

The Respondent’s Evidence

The Respondent denied being aware of the loans claimed by the Applicant until after this proceeding was underway in 2022 as set out in the Applicant’s Financial Statement. He claimed that he had not seen the purported loan agreements until December 2024.

The Respondent testified that the parties had a “normal” wedding and he recalled that Mr. Banjo had been in financial crisis at that time. As such, as far as the Respondent was aware, Mr. Banjo had been unable to assist with the cost of the wedding.

When the parties landed in Canada, the Respondent testified that they had both secured jobs with Magna International. The Applicant did some training for a new, higher paying, position and eventually, in 2018, the Respondent went back to school for two years in order to boost his salary prospects as well.

The Respondent testified that the parties were not able to be approved for a mortgage when they tried to get one in 2012. He claimed that the Applicant later approached him about a new property that was available and that she insisted on purchasing it. The Respondent wanted to wait until the parties could save more money. In any event, he ultimately agreed to the Applicant’s plan. He alleged that she had forged his signature on the mortgage documents, however, he was confused about this because he was willing to sign them himself.

The Respondent testified that he did not know where the story of an $80,000 loan came from. He said the down payment on the Woodbridge property was not more than $50,000. He claimed that the Applicant had emptied the parties’ joint account of over $14,000 and that the balance of the down payment came from savings.

The Respondent believed that the Applicant had saved up money to put toward the purchase totalling $50,000 and the balance had been taken out of their joint account in the amount of $14,000.

The Respondent claimed that they had an agreement that he would pay expenses, like the car loan and household expenses and that the Applicant would pay the downpayment.

For the purchase of the Algoma Drive property, the Respondent testified that it was a new development and a preconstruction property in 2016. They signed cheques for monthly amounts to be paid toward the purchase and then they used the Woodbridge property’s net proceeds of sale and applied those funds to the Algoma Drive property upon closing, as reflected in the Trust Ledger.

The Respondent claimed that there were some challenges with getting bank approvals because the Applicant had opened and closed many accounts. He claimed that she used the accounts for her currency exchange business and this practice had raised red flags for the banks.

The Respondent testified that the Applicant was in the business of locating people to exchange Naira for CAD and CAD for Naira. This was to save costs. He understood that the Applicant’s brother would give Naira to third parties and that the Applicant would secure CAD from people in Canada for the exchanges.

When asked how the parties were able to pay for the various renovations that took place, the Respondent claimed that the contractor was paid over time, and on an as-needed basis. He claimed that all of the funds were from the parties themselves and not from any loans, as far as he was aware.

When the parties purchased the Brantford property, the Respondent testified that he was finishing school. He acknowledged that he did not contribute to the family finances while he was in school full time from 2018 to 2020. He wanted to use equity from the Algoma Drive property toward the purchase, the Applicant did not.

At the time, the Respondent claimed that he believed the Applicant had been earning an extra $4,000 per month from her business and claimed that she told him she had sufficient funds to pay the deposit on the property.

The Respondent testified that he did not believe that the loans claimed by the Applicant existed at all.

Law: Loans, Gifts, and Onus

Across the various family property regimes, the onus of proving entitlement to an exclusion (or deduction) rests squarely with the spouse claiming it. The Courts have also repeatedly confirmed that the onus is on the spouse asserting a value of an asset or liability under his or her control to provide credible evidence in support of it. (Conway v. Conway; Crepeau v. Crepeau, 2012 ONSC 418)

"Where characterization of the transfer is in issue, the credibility of the parties is critically important to the Court's determination of the issue." (Crepeau v. Crepeau, 2012 ONSC 418 at para. 41)

In Barber v. Magee, 2015 ONSC 8054, the legal test to determine loans to be included in the NFP is set out, and the Court of Appeal upheld the decision in 2017 ONCA 558.

Analysis: Existence of the Alleged Loans

The Court finds that the loans claimed by the Applicant were not supported by sufficient corroborating evidence to satisfy the Court that 1) any funds had been advanced to the Applicant by her siblings; and 2) if the funds were advanced, that the Applicant was expected to repay them.

Questions around the authenticity of the actual loan documents were reinforced by the delay in disclosure. That issue was then coupled with the loan agreements all looking strikingly similar despite the many years between them, and a failure of the Applicant to call any of the authors of the loan agreements nor any of the witnesses to the agreements to back up her story. The only witnesses called were her siblings. There was clearly a lot of love between the siblings, and while this fact alone does not render the siblings lacking of credibility, it does require an elevated level of scrutiny by the Court given that the witnesses and the claiming party are aligned and they are not at arm’s length to the issues being decided.

The Court found the evidence of the Applicant and her siblings to sound rehearsed and, like the loan agreements, strikingly similar. Where there were differences in their testimony, the differences only raised questions about the credibility of the Applicant, because the information provided by the siblings was not consistent with her own evidence.

The Applicant was not a credible witness when it related to the loan agreements and her financial dealings. The Applicant was belligerent, unhelpful, resistant, and very disrespectful toward Counsel for the Respondent. The Applicant was unable to acknowledge basic facts in the face of concrete evidence and in contrast to her own evidence in chief.

When the Court reviewed the indicia in the caselaw that supported existing, repayable, loans, it is not satisfied that most of the factors outlined had been established by the Applicant at trial.

While there existed a number of loan agreements between the Applicant and her siblings, the Court had many concerns about the authenticity of those agreements for the following reasons:

• They were each identical in nature despite allegedly being prepared over a long period of time, and by different people.
• The parties to the agreement were not at arm’s length.
• There were questions about who had witnessed and signed the agreements on the date listed therein.
• None of the authors of the agreements were called as witnesses at trial.
• None of the witnesses to the agreements were called as witnesses at trial.

Given the above concerns, the Court required additional corroborating evidence in order to be convinced, on a balance of probabilities, that the funds were actually advanced to the Applicant, and repayable to her siblings.

The Court is not satisfied that any funds were actually advanced to the Applicant, for the following reasons:

• The Court was not provided with any documentary proof that either of the Applicant’s siblings had transferred funds out of any of their accounts to the Applicant or to any third parties.
• The Court was not provided with any evidence related to the siblings own financial circumstances and their ability to advance the significant funds claimed.
• No cheques, etransfers, emails, text messages or other documentation was provided to demonstrate that any funds whatsoever had been provided to the Applicant by her siblings, or anyone else.
• The Court was not convinced that anonymous third-party intermediaries were used to transfer hundreds of thousands of dollars (amounting to over $1 million) between the siblings and the Applicant without any documentation to support these transactions. It is unfathomable to the Court, and not plausible, that the siblings provided an anonymous person with such significant funds without having any way of recouping/tracing the funds given to that third-party in the event of fraud or the third-party’s failure advance the funds to the Applicant.
• There was no documentary proof of any demands for repayment before or after the date of separation.
• There was no documentary proof of any repayments being made before the date of separation.
• The Applicant failed to disclose bank records from the accounts she claimed to use to send the repayments she claimed to have sent to her sister after the date of separation.
• There was no security for the loans that amounted to approximately $1,800,000.
• The Applicant did not seek a term in her draft Order directing that the proceeds of sale of the marital properties be payable to either of her siblings in full or partial repayment of the alleged loans.
• The siblings were not added as parties to the proceeding.
• The siblings did not advance their own independent claims seeking repayment of any alleged loans, nor any trust claims against the properties.

Equalization – Which Party’s Account of the Various Balances for Assets and Liabilities on the Date of Separation Prevail? What Equalization Payment is Owing, if Any?

The parties filed a Comparative Net Family Property Statement at the outset of trial, and it was made a lettered exhibit. The parties made submissions and tendered evidence about the various conflicting items.

Law: Family Law Act

See Family Law Act, RSO 1990, c F.3.

Findings

The Court prepared the attached Net Family Property Statement at Schedule A as the trial progressed. The Court finds that the Applicant owes the Respondent an equalization payment of $40,383.92.

The evidence received and reasons for each finding on the items in dispute are noted within the Schedule and underlined (other than the family loans – as the reasons are set out above). Items that are not underlined, were not in dispute at trial.

Post-Separation Adjustments and Occupation Rent

Documentary Evidence

Neither party had initially produced evidence at trial relating to the mortgage amounts, insurance amounts nor property taxes that had been paid since January 2022. This put the Court in the impossible position of not being able to do any calculations. It was not disputed that these financial obligations had been met since January 2022, for the most part.

It was quite surprising to the Court that neither party had done the calculations for post-separation adjustments using numbers supported by bank statements. The parties, even on the second last day of trial, had no idea how much money they were actually fighting over. This was perplexing.

The Respondent complained that the Applicant had not provided disclosure of the mortgage statements, property tax statements or insurance in advance of trial. While this was a valid complaint as it related to the Brantford property, the Respondent had no excuse for the lack of documentary evidence related to the jointly held Algoma Drive property. It is difficult for the Court to admonish the Applicant for her poor behaviour when it was met with poor behaviour by the Respondent.

Given the above, it was agreed by the parties that the Applicant would be recalled to enter various bank statements into evidence.

When she was recalled, the Applicant did not put her bank statements for 2022, 2023 and 2024 into evidence and the Respondent sought to have the Court draw an adverse inference against her.

Post-Separation Adjustments – the Positions of the Parties

The Applicant sought post-separation adjustments that were not particularized during the trial, despite the Court’s direction for the Applicant to provide a draft Order with the claim being identified with specificity.

It is unclear to the Court how the Applicant pursued this claim to the point of trial if she did not know what she was pursuing. Further, how could any meaningful settlement discussions take place if the Respondent had no details of her claim?

In the Respondent’s Affidavit, he sought to have the Applicant’s claim for post-separation adjustments dismissed and that no such adjustments be payable by either party, despite his acknowledgement that he did not contribute toward the carrying costs of either property (other than home insurance for the Algoma Drive property) since January 2022.

Further, despite this position, he did seek to have withdrawals the Applicant transferred into her account from the parties’ joint line of credit in 2022 accounted for.

Algoma Property Expenses since January 2022

Home Insurance

The Respondent claimed that he had paid the home insurance on the matrimonial home since he left in January 2022. The Applicant claimed that she paid the home insurance in 2022.

The Applicant offered, in her testimony, that the home insurance was connected to the Respondent’s auto insurance.

Neither party provided any corroborating evidence to support their claim.

Given that the home insurance formed part of the Respondent’s automobile insurance, it was not logical that the Applicant had paid the home insurance portion for 2022.

When balancing the credibility of the parties, the Court had significant concerns about the Applicant’s credibility and her unwillingness to cooperate in her testimony at trial. Furthermore, she did not produce bank statements at trial that could have supported her claim.

As such, the Court finds that the Respondent paid the home insurance on the matrimonial home from January 2022 to trial.

Unfortunately, the amount he paid toward the home insurance was not particularized in the Respondent’s draft Order nor in his closing submissions (despite the Court’s repeated request that he do so). As such, the Court is unable to make a finding related to the quantum of this claim.

Property Taxes

The Respondent acknowledged that he had not contributed toward the property taxes since January 2022.

The property tax statements were filed at trial and the 2024 and 2025 statements showed that the account had not been fully paid.

The Applicant should receive credit for her contributions. The parties are each responsible for half of the property taxes on the jointly held home from January 2022 and until it is sold.

Unfortunately, the amount the Applicant paid toward the property taxes was not particularized in her draft Order nor in her closing submissions (despite the Court’s repeated request that she do so). As such, the Court is unable to make a finding related to the quantum of this claim.

Mortgage Payments

The Respondent acknowledged that he did not contribute toward the mortgage from January 2022 to trial. However, he testified that he was required to pay rent for his own apartment and he made an occupation rent claim in response to the Applicant’s claim for post-separation adjustments.

The Applicant claimed to have doubled the mortgage payments that she was making, using funds that were loaned to her by her sister. As found earlier in this decision, the Court is not satisfied that such funds were being loaned to the Applicant.

The Applicant did not make a claim for unequal division of the parties’ net family property, as such, the issue of her additional contributions related only to the post-secondary adjustment calculation and whether or not these extra payments support her narrative regarding the loans.

Given that the extra payments were claimed to have been paid after the date of separation, the Applicant would have been entitled to claim this reimbursement.

Withdrawals from Joint Line of Credit

In cross-examination, Counsel for the Respondent presented the Applicant with a Statement of Adjustments for the Brantford property and bank statements from the parties’ joint line of credit.

The Applicant acknowledged that she had withdrawn $70,000 from the joint line of credit on September 13, 2022, and deposited that money into her sole account. She acknowledged that the Statement of Adjustments, dated December 15, 2022, indicated that $70,000 had been paid toward the downpayment. She denied that this was the same money.

The Applicant insisted that the $70,000 listed on the Statement of Adjustments had been paid in 2019 and that she had sent the additional $70,000 that she withdrew in 2022 to the lawyer toward the cost of the property, and it had not been reflected on the Statement of Adjustments.

It took quite a bit of wrangling to get the Applicant to explain this. The Court was required to intervene and asked questions in a step by step fashion in order to elicit an answer.

The Applicant, in cross, also acknowledged withdrawing $106,000 from the joint line of credit on April 26, 2022, and depositing the funds into her sole account.

Rental Income

In addition to the above, the Applicant acknowledged receiving rental income from the two basement apartments located in the Algoma Drive property, however, she was elusive and did not provide any particularized responses about the rent she had collected since separation.

Brantford Property Expenses since January 2022

Property Insurance

It was not disputed at trial that the Applicant had paid the property insurance since January 2022.

Property Tax

It was not disputed at trial that the Applicant had paid most of the property taxes since January 2022. The most recent property tax statement had an amount owing.

Mortgage Payments

It was not disputed at trial that the mortgage payments on the Brantford property had been paid and kept up to date since 2022 by the Applicant.

Occupation Rent

The Applicant sought to have the Respondent’s claim for occupation rent dismissed on the basis that he did not plead occupation rent in his Answer.

The Respondent took the position that he was entitled to occupation rent for the Algoma Drive property as the Applicant had changed the locks on the home in July 2022 and he was unable to resume residing there.

Further, he claimed that he had been required to rent an apartment for $1,500 per month while the Applicant did not need to pay rent and she was able to live in the home.

The Respondent took the position that he was entitled to occupation rent of the Brantford property based on an intentional or reckless depletion of the Applicant’s NFP.

It was his position that the property should have been generating income which would have offset the accumulation of post-separation expenses.

Law: Occupation Rent

From Doi J. - Anthony v. Ogunbiyi, 2024 ONSC 7287:

A grant of occupation rent is not automatic, and should only be awarded when it is reasonable and equitable to do so to achieve justice in the circumstances of the case: Khan at para 11. The factors to consider in deciding an occupation rent claim in a family law context are:

• the timing of the claim for occupation rent;
• the duration of the occupancy;
• the inability of the claiming spouse to realize on their equity in the property;
• any reasonable credits to be set off against occupation rent; and
• any other competing claims in the litigation.

An award of occupation rent usually represents one-half of the rent that could have been earned had neither party lived in the property and it had been rented out: Cirota at para 184, citing Doyle v. De Sousa, 2023 ONSC 3163 at para 40; Skrak v. Skrak, 2024 ONSC 1574 at para 94.

Analysis: Occupation Rent

The Respondent did not make a claim for occupation rent in his Answer dated September 29, 2022. He did, however, seek an Order for the sale of the Algoma Drive property.

In contrast, regarding Brantford property, in his Answer the Respondent sought an Order freezing the Applicant’s assets and restraining her from depleting or disposing of any property in her name, pending the “resolution of all issues.”

The Respondent left the matrimonial home on January 15, 2022, and the Applicant had occupancy of the home from that day and until trial. The Applicant admitted to changing the locks in July 2022.

The Respondent never had access to the investment property, as title to that property was in the sole name of the Applicant at closing sometime in 2022.

The Court was not made aware of any motions filed by the Respondent seeking the sale of either property, however, it was not disputed that the Respondent could not realize his equity in either property as they were not sold during the litigation.

Neither party addressed this issue in their submissions or evidence at trial. As such, there was no evidence of reasonable credits to be set off against this claim.

The competing claim in this litigation as it related to occupation rent were the claims for spousal support and child support. Both issues had been determined on consent, however, it was not until about the third day of trial that the Respondent acknowledged his obligation to pay child support for the period between January 2022 and October 2022. That said, neither party made submissions on this point.

Conclusion: Occupation Rent

The Court finds that the Respondent is not entitled to occupation rent related to either property at issue in this trial based primarily on his failure to make the claim.

The doctrine of laches applies in this case as the Applicant was not put on notice of the claim and she, therefore, could not take steps in defence of the claim.

With respect to the Algoma Drive property, the Applicant continued to reside in the home with the parties’ children based on the Respondent’s acquiescence to the status quo.

Regarding the Brantford property, the Respondent sought an Order in his Answer freezing the Applicant’s assets, which would have restricted her from selling the property.

If I am incorrect in the above analysis, I reject the occupation rent claim for the following reasons:

At trial, the Court was not provided with a particularized occupation rent claim for the Algoma Drive property. The Respondent did not file any evidence as to the market rate for renting the matrimonial home. Any ideas he may have had about the market rent were not put to the Applicant in cross-examination.

Further, as it related to the Algoma Drive property, the Respondent acknowledged in his Affidavit that he did not wish to push for its sale given that the children primarily resided in the home.

Based on the foregoing, the Respondent failed to produce the evidence required to support a claim for occupation rent associated with the Algoma Drive property. He left the home on his own volition and the evidence he provided at trial supports a finding that while he sought to have the home sold in his Answer, he had acquiesced to the status quo during the proceedings.

With respect to the Brantford property, the Respondent sought occupation rent in the amount of $2,000 per month, as that would have been the market rent for the home.

The Applicant admitted that the home should have been able to be rented at the suggested rate, however, she claimed that she was unsuccessful in securing a tenant. She did not provide any supporting documentation to corroborate this claim.

The Brantford property was in the sole name of the Applicant. While the Respondent had a 50% beneficial interest in the home, the Applicant was the only party who had the authority to rent it out and to access it.

The Court was not provided with any evidence of the Respondent seeking to have the Brantford property sold, and if he did make such a request, no evidence was provided to establish when that request was made.

The Respondent argued that his share of any post-separation adjustments should be lowered to account for the rent that the Applicant should have been able to collect on the home.

The Respondent did not provide the Court with independent evidence regarding the rental rates for the Brantford property, he did not provide the Court with any evidence regarding the rental market in general and whether or not the property could have been rented out.

As set out above, it was the Respondent himself who sought an Order preventing the Applicant from disposing of the property. In the face of this claim, and the absence of a claim for occupation rent in his pleadings, the Respondent’s claim at trial is dismissed.

Failure of the Parties to Particularize Their Claims

Each party filed written submissions with lump sum amounts claimed. The Applicant sought $69,078.82 “in respect of carrying costs associated with the matrimonial home”, plus, $70,630.20 “in respect of carrying costs associated with the investment property.”

The Respondent sought to have the Applicant’s post-separation claims dismissed (or off-set by occupation rent) and equalization (plus pre-judgment interest).

The Applicant failed to provide a breakdown of her lump sums to indicate how she came up with her numbers (for example, the Court does not know whether she included in this amount the home insurance paid by the Respondent or property taxes that remained outstanding).

The Respondent provided no breakdown at all and got away with this by seeking to have these claims dismissed and off-set with no calculations provided.

The only way the Court could make particular findings about specific post-separation adjustments would have been with the assistance of the parties by breaking down their claims and particularizing them.

The Court requested this type of detail on the first day of trial, and on most days throughout the trial the Court repeatedly identified the failure of the parties to indicate specifically what claims they were making.

The Court is not inclined to again ask the parties to particularize their claims. They were given ample warnings and opportunities during the trial and in their written closing submissions.

To allow them to now provide a breakdown of the claims would require additional Court time and resources. The Court had already provided an opportunity to re-open the Applicant’s case for failure to provide any documentation in support of her claims for post-separation adjustments. When recalled, she provided some documents, but not all – and no summary of those expenses were provided to the Court.

The parties are fully, and solely, responsible for putting forward the Orders they are seeking at trial. Each party’s attempt to have the Court create these claims on their behalf is highly problematic.

Neither party, after three years of litigation, five days of trial and written closing submissions, had any idea what specific claims they were making against each other.

Findings Regarding Post-Separation Adjustments

The Court finds that the Applicant must repay half of the funds she withdrew from the parties’ joint line of credit in 2022 (post-separation) to the Respondent in the amount of $88,000.

The Court dismisses the Respondent’s claim for occupation rent, for reasons set out above.

The Court finds that the Respondent’s position, that the Applicant is not entitled to any post-separation adjustments for her contributions toward the carrying costs of the Algoma Drive and Brantford properties to be patently unreasonable.

However, the Court is drawing an adverse inference against the Applicant for her failure to provide full and frank disclosure and her failure to particularize her claims for the various carrying costs she said she had paid and the rent that she admitted to collecting from tenants in the Algoma Drive property.

The Court is reducing her post-separation adjustment claims in this regard by 50%. To dismiss the claim altogether would fail to recognize that the Applicant was the only person contributing toward the mortgages, most of the property taxes and all of the insurance on the Brantford property. However, to grant her request for the lump sums listed in her closing submissions, would be speculative and not based on evidence because she had failed to provide full disclosure, or an accounting of her specific claims. A failure to provide full disclosure leads this Court to believe that such disclosure would likely have revealed evidence that was not favourable to the Applicant’s various claims. There is no excuse for failing to provide disclosure.

As such, the Applicant is entitled to post-separation adjustments regarding the Algoma Drive property in the amount of $34,539.41 and for the Brantford property in the amount of $35,315.10 for a total of $69,854.51.

On a balance of the claims by the Respondent and the Applicant, the Applicant owes the Respondent $18,145.49 in post-separation adjustments ($88,000 - $69,854.51).

Order

1. This is a final Order made by way of the Family Law Act.
2. The parties jointly own the home located at 189 Algoma Drive, Kleinburg, Ontario.
3. The parties each have a 50% interest in the property located at 26 Stouffer Road, Brantford, Ontario.
4. An Order was made on June 2, 2025, on consent, for the sale of the above noted properties.
5. The net proceeds of sale from each property shall be divided equally and disbursed to the parties, after payments are made to the Respondent as set out in paragraph 6, below.
6. From the Applicant’s 50% share of the net proceeds of whichever property closes first (and accounting for the disbursements listed in the Order dated June 2, 2025), the Respondent shall receive:
   • $18,145.49 reflecting the balance of post-separation adjustments owing to him by the Applicant; and
   • $40,383.92 reflecting the equalization payment owing to him by the Applicant.

Costs

7. Any outstanding claims in this proceeding are dismissed, except for costs of the trial and divorce.

8. If the parties are unable to reach an agreement as to costs, the Court invites submissions as follows:

   • (a) the Applicant may file written submissions not exceeding four pages within 15 days of the release of this decision;
   • (b) the Respondent may file written submissions not exceeding 4 pages within 25 days of the release of this decision;
   • (c) submissions shall be double spaced, using 12 point font;
   • (d) the page limits do not include Offers to Settle or Bills of Costs, which should be attached;
   • (e) cost submissions shall be sent to my Judicial Assistant by email at nurit.suzana@ontario.ca and filed through the JSO portal; and
   • (f) If costs submissions are not received in accordance with the above timelines, no costs shall be payable to the applicable party.

The Honourable Justice A.M. Daurio
Date: July 21, 2025

Schedule “A”: Net Family Property Statement

Omitted for brevity; see original for full tabular details.

End of Decision