COURT FILE AND PARTIES

Court File No.: FS-22-00029113-0000

Date: September 12, 2025

Ontario Superior Court of Justice

Between:

Diana Rea-Cina – Applicant

– and –

Daniele Cina and 2647711 Ontario Inc. – Respondents

COUNSEL AND HEARING

Counsel:

• Toni Wharton and Gida Deti, for the Applicant
• Respondents Self-Represented

Heard: December 9, 10, 11, 12, 13, 16, 17, 18, 2024; January 3, and February 21, 2025

Reasons for Judgment

A.P. Ramsay, J.

CONTENTS

I. Overview

II. Issues to be Determined

III. Analysis

• A. Does the court have jurisdiction to set aside certain terms of the consent parenting order?
• B. The court may consider the parenting order on the merits
• C. Conclusion on variation of parenting provisions of consent order
• D. Is a party entitled to a payment for equalization of family property?
• E. Is the applicant entitled to relief for oppression?
• F. Can the applicant maintain a claim for damages for "loss of opportunity" regarding the matrimonial house sale?
• G. Insurance
• H. Should punitive and aggravated damages be awarded to the applicant?
• I. Should a divorce be granted?

IV. Disposition

V. Costs

I. OVERVIEW

[1] The applicant mother and respondent father married on July 8, 2006. They separated on August 9, 2021. They have two children: G., born [xxx], now 17, and N. born [xxx], now 13.

[2] The applicant is a schoolteacher. The respondent father is self-employed at a body shop, which he owns. The body shop leases commercial space from the respondent numbered company. Both parties have equal shares in the respondent numbered company, which has been controlled by the respondent father.

[3] The applicant mother commenced these proceedings for a divorce, child and spousal support, parenting time, decision-making responsibility, an equalization of net family property, and other property issues.

[4] In October 2023, the parties reached a final agreement on the question of parenting, child support, and spousal support. At the time, certain final issues between the parties remained to be resolved. The terms of their agreement were incorporated into a final order, on the consent of the parties.

[5] The trial addressed issues previously settled by the parties by way of a final consent order and financial issues related to section 7 extraordinary and other expenses. The balance of the questions to be determined relate to claims against the respondent 2647711 Ontario Inc., which was added to the proceedings by order of Hood J. in November 2024, and other financial issues.

[6] The applicant asserts that the respondent is in breach of the order and seeks to set aside or vary certain provisions of the order related to parenting and enforce other provisions related to section 7 expenses. She asks the court to make an adverse inference in the determination of ownership or valuation of assets for the purposes of calculating the net family property and the quantum of equalization payment and seeks relief for conduct alleged to be oppressive by the respondent and 264 Ontario.

[7] The applicant is advancing a claim for damages based on the doctrine of "loss of opportunity" in the sale of the matrimonial home because of the respondent's conduct. She is also advancing a claim for punitive and aggravated damages because of the respondent's alleged breach of court orders.

[8] The respondent represented himself at the trial. He has had a lawyer representing him at various times during the family law litigation. Justice Nakonechny granted him leave to represent 264 Ontario, by order dated November 19, 2024.

[9] The respondent says the current parenting schedule and shared decision-making should remain in place. He asks that a cap be set for the children's extra-curricular expenses and has asked that the court revisit various expenses related to the children.

[10] The respondent asserts that the parties received a fair and reasonable price in selling the matrimonial home. He asks that the court revisit several items related to extracurricular expenses. He says the applicant has advanced false allegations about property alleged to be owned by him for monetary gain and argues her attempt to force the sale of 264 Ontario is malicious, and an attempt to circumvent the statute.

II. ISSUES TO BE DETERMINED

[11] The following issues are to be determined:

i. Does the court have jurisdiction to set aside certain terms of the consent parenting order?

ii. Is the respondent in breach of consent order re: section 7 expenses?

iii. Is a party entitled to payment for equalization of family property?

iv. Is the applicant entitled to relief for oppression?

v. If the applicant is entitled to relief for oppression, what is the appropriate remedy?

vi. Can the applicant maintain a claim for damages for "loss of opportunity" regarding the matrimonial house sale?

vii. Is the applicant entitled to punitive and/or aggravated damages?

viii. Should the orders sought by the respondent be granted?

ix. Should a divorce be granted?

III. ANALYSIS

A. Does the court have jurisdiction to set aside certain terms of the consent parenting order?

[12] This application was commenced under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) and the Family Law Act, R.S.O. 1990, c F.3.

[13] At a settlement conference on October 18, 2023, Sharma J. made a final order on parenting issues with a Parenting Plan. The order provided that a Parenting Coordinator was to by chosen by the respondent from a list provided by the applicant mother. The Parenting Coordinator would have the power to make binding decision for the parties if they were unable to reach a mediated agreement. The respondent father consented to the final parenting order with the assistance of counsel. The order also resolved on a final basis, the questions of child support, section 7 expenses, spousal support, and life insurance.

[14] Under the consent order, both parents have joint decision-making responsibility. Paragraphs 6 through 1 deal with the process for selecting a parenting coordinator.

[15] The applicant says that the respondent has not fully complied with the parenting terms, and other provisions of the consent order. The applicant seeks to set aside the terms of the consent order related to joint decision-making and the appointment of a Parenting Coordinator. She seeks sole decision-making responsibility.

[16] The applicant seeks to set aside paragraphs 1, 2, 4, 6, 7, 8, 9, 10, 11, and 12 of the Final Consent Order, relating to decision-making responsibility and a parenting coordinator. She now seeks sole decision-making responsibility for the children.

[17] The respondent says the children are content with the current shared parenting time and shared decision-making responsibility.

[18] The respondent was represented by counsel when he entered into the final parenting order. The respondent does not challenge the enforceability of delegating decision making to the parenting coordinator.

[19] For the reasons below in this section, I conclude that it is in the best interest of the children that the consent order be varied, and the applicant mother awarded sole decision-making responsibility for the children.

i. The court cannot delegate its authority over parenting orders

[20] The applicant submits that the court retains supervisory authority to terminate clauses related to parenting coordinators in the best interest of the children. She relies on the decision of Ali v. Obas, 2021 ONSC 3412.

[21] The respondent has not challenged the court's authority to revisit a final parenting order. And, while the respondent did not challenge Ali, I find that the facts are distinguishable. In Ali, the parties did not have a final order and were at a temporary order stage. The court also noted that the parties wanted to expand the jurisdiction of the parenting coordinator to assume the role as arbitrator beyond the disputes set out in their agreement. I do however agree with the observation made by Justice Shelston that the order provided a mechanism to return to court was consistent with the court being the final arbitrator of parenting disputes.

[22] The respondent does not contest the fact that he has not complied with the consent order of Sharma J. He has gone on to breach other court orders related to agreeing to a parenting coordinator. After the consent order, the parties initially agreed to a parenting coordinator suggested by the respondent. He testified that he refused the parenting coordinator agreement based on their power to make binding decisions.

[23] On cross examination, the respondent admitted that he has attended court multiple times to address the parenting coordinator issue. He agreed that on one of those attendances, his counsel proposed Dr. Fidler. He resiled from using Dr. Fidler as well. He agreed that costs were ordered against him for the time spent setting up the arrangements with Dr. Fidler.

[24] On one of those occasions, the applicant successfully brought a motion on August 6, 2024, before Shin Doi J., requiring the respondent to comply with the consent order; he was ordered to negotiate a Parenting Agreement with parenting coordinator, Jenna Beaton within 21 days. The respondent has not signed a Parenting Coordination Agreement, in breach of the order of Shin Doi J. He reiterated that he disagreed with the binding and arbitration part of the contract," but claimed that "the PC, I always agreed to."

[25] In her Trial Management Conference endorsement dated February 22, 2024, Nakonechny J. noted the respondent was challenging the consent order. She stated: "The Respondent husband now disputes the Order, in particular, the powers given to the parenting coordinator. The Applicant wife argues that she would not have consented to the Order without the PC."

[26] The parties, as between themselves, agreed to vary the consent order to avoid pending motions related to the consent order. In a subsequent Trial Management Conference endorsement dated May 1, 2024, Nakonechny J. commented on the animosity between the parties, the delay in putting a parenting co-ordinator in place, and the respondent's changing position. She stated:

[5] On March 27, 2024, the parties also agreed to put a Parenting Coordinator in place with mediation powers only. The Respondent proposed three PCs. The Applicant agreed to two. Ms. Wharton and the Respondent's prior counsel spent time coordinating with Dr. Barbara Fidler for scheduling and the retainer agreement which included the terms of the PC's role.

[27] Nakonechny J. went on to state:

[7] The parties originally settled on the involvement of a PC before Justice Sharma in October 2023. The Respondent then resiled from that agreement. It is now 6 months later, and no PC is in place. The animosity between the parties continues regarding parenting issues.

[28] The court cannot delegate its decision-making authority over parenting issues: see, K.M. v. J.R., 2022 ONSC 111; M. (A.C.) v. M. (D.), [2003] 67 O.R. (3d) 181, 231 D.L.R. (4th) 479; D.D. v. H.D, 2015 ONCA 409, 335 O.A.C. 376. The court may, however, make a parenting order which includes parenting coordination or an arbitration clause if the agreement is final, is on the consent of the parties, and the parties had legal advice: see Evans v. Evans, 2023 ONSC 3919; R.L. v. M.F., 2023 ONSC 2885; M. (A.C.) v. M. (D.).

[29] In this case, the provisions related to the parenting coordinator and arbitral clause were included in a final parenting order. The final parenting order was on the consent of the parties. Both parties were represented by counsel, and therefore had legal advice, at the time the final consent agreement and final consent order was made. Therefore, the parenting order with the arbitral clause complies with the jurisprudence for it to be enforceable.

[30] Despite his consent, the respondent now objects to the parenting coordinator having any arbitral power. Justice Nakonechny's trial management endorsement noted that the parties had agreed to vary the order to permit the parenting coordinator to have mediation power only. The respondent resiled from that agreement as well. There is no evidence before me that there was any formal variation of the order.

[31] The respondent has made it clear that he does not intend to abide by certain provisions in the Final Consent Order of Sharma J. He agreed to two parenting coordinators, then resiled from that decision. He has ignored the enforcement order of Shin Doi J. which set a deadline for him to sign the parenting agreement. He did not comply with a further agreement between the parties to use a parenting coordinator of his choice, and the directions of Nakonechny J. He agreed that he sent an email stating that he would never consent to arbitration and would never give up his fundamental right to seek justice in an open court system.

[32] The applicant argues that the respondent's actions has made joint decision-making unworkable and have left important decisions about the children's health, education, and activities unresolved, which is supported by the evidence.

[33] I am satisfied that the respondent's failure to comply with the impugned requirements under the consent order has led to instability and unpredictability for the children and entrenched conflict between the parties. Instead of ameliorating the children's circumstances and that of their parents, all have become drawn into a continuous pattern of conflict as the Final Consent Order is subject to continuous dispute.

ii. Court's authority to vary or set aside a consent order

[34] The applicant asserts that the respondent's refusal to engage in the parenting coordinator process has resulted in conflicts and unresolved decisions, delays in medical appointments, interruptions in educational support, and inconsistencies in managing the children's activities. She says that she was agreeable to joint decision-making responsibility as long at the parties could engage a parenting coordinator to mediate any agreement regarding major decisions and have the authority to arbitrate and make binding decisions, is supported by the evidence.

[35] On the evidence, the parties had drawn boundaries within the matrimonial home from 2017. This would explain why the applicant initially took the position that they separated that year. Inability to resolve decisions about the children devolved into conflicts; each of them at one time or another have called various authorities to report the behaviour of the other. The applicant complained, with good reason, that the respondent involved the children in their disputes.

[36] Her evidence regarding the respondent's failure to respond in a timely manner to issues involving decisions about the children's health and education is not contested by the respondent, though he has his own explanations as to why he did not do so. I find his explanations to be self-serving and, at times, jeopardize the timely investigation of injury to his children or treatment. She says that while she advises the respondent of medical issues or injuries the children sustains while in her care, he does not reciprocate. She testified that she witnessed N. fall at a hockey game on the respondent's parenting time. She says the respondent refused to have N. get x-rays, and he appeared to be relying on the fact that it was his parenting time and quoted the order to her. She claimed the respondent ignored her emails, told her N. had been x-rayed, and told her to follow up with the fracture clinic. She says he did not have N.'s tailbone x-rayed, although such an x-ray had been recommended. She says N. also sustained a fracture of his fifth metatarsal while in the respondent's care; it was only after N. returned to her care and was complaining of pain and investigation carried out that the fracture was discovered. The respondent did not tell her about the injury.

[37] The final consent order also provided that the parties would have joint decision-making responsibility for such things as "culture", yet the respondent excluded the applicant from the selection of a sponsor for N.'s Confirmation.

[38] The applicant points to the respondent's seven-month delay in responding to N.'s dental care, which required a court attendance.

[39] By his own admission there were other delays by the respondent, including paying for his share of their daughter's school uniform. Instead, he suggested that she change schools.

[40] The applicant's uncontested evidence is that the respondent has not contributed his share of the $200 a month to the joint account for the children's expenses, as contemplated by the Final Consent Order by Sharma J. The respondent claims that the applicant was withdrawing money from the account without his consent, which is not supported by the evidence. I infer from the evidence that the respondent's delay in responding to the applicant has resulted in her incurring expenses funded by the joint account, which in my view, is appropriate and reasonable for a parent to do, in the circumstances.

[41] The parties are now embroiled in disputes about the children's extra-curricular expenses despite the question having been dealt with by the final consent order. The respondent agreed that in December 2023, he asked the applicant to place a $3,000 cap on extra curricular expenses. He initially stated that she did not respond, but when challenged agreed that she responded. He agreed that when the applicant communicated with him in August of 2024 to signal, she would agree, he told her that it had been a year, and he was no longer agreeable.

[42] Both parties were invited to make submissions on the court's jurisdiction to vary, amend or set aside a consent order, but did not do so. The applicant merely asserts that the respondent is in breach of the consent order.

[43] A consent order is a species of contract: Johnston v. McLean, 2024 ONCA 791, 504 D.L.R. (4th), at para. 14. Generally, consent orders can only be set aside on the same grounds that would otherwise vitiate a contract, such as common mistake, misrepresentation or fraud, or on any other grounds which would invalidate a contract: Chitel v. Rothbart (1984), 42 C.P.C. 217, aff'd (1985) 2 C.P.C. (2d) xlix (Ont. Div. Ct.); McCowan v. McCowan, [1995], 24 O.R. (3d) 707, 14 R.F.L. (4th) 325, at para. 19; Ruffudeen-Coutts v. Coutts, 2012 ONCA 65, 348 D.L.R. (4th) 64, at para. 61.

[44] In Johnson, the Court of Appeal commented that the contractual nature of consent judgments "drives the requirement to determine the intention of the parties." While the issue in Johnson was the analytical approach to the interpretation of a consent judgment, in my view, the parties' intention is an important consideration, though not determinative as to whether the consent order should be varied, as it considers the surrounding circumstances for making the order.

[45] I find the applicant's evidence to be credible that she would not have agreed to the consent parenting order without the inclusion of a parenting coordinator and arbitration clause in the order. The uncontested evidence before the court is that even at the time of the trial, the respondent had still not complied with the terms of the consent order dealing with the parenting coordinator. He has indicated by his repeated refusal to fulfill his end of the agreement, even with the weight of further enforcement orders, that he does not intend to carry out his end of the deal. From his own evidence, he will never agree to the use of a parenting coordinator who has authority to make binding decisions.

[46] The applicant's uncontested and unchallenged evidence is that the respondent indicated in an email since the consent order was obtained, that he will never consent to any form of arbitration. The respondent's position means that the mechanism to which the parties consented, with the assistance of counsel, for resolving parenting disputes, cannot be completed.

[47] I find that the respondent is in breach of his contractual obligations under the consent order. In my view, the respondent's refusal to carry out the obligation complained of, as contemplated by the consent order, is tantamount to a repudiation or rejection of important aspects of his obligations under the consent order, entitling the applicant to seek relief from the court.

[48] The jurisprudence establishes that court orders are not "suggestions" or "frameworks" or "guidelines"; Taylor v. Taylor, [2005] 21 R.F.L. (6th) 449, at para. 3; Lima v. Ventura (Estate of), 2020 ONSC 3278, at para. 24. In Gordon v. Starr, [2007] 42 R.F.L. (6th) 366, at para. 23, J.W. Quinn J. stated: "an order is an order, not a suggestion. Non-compliance must have consequences." Court orders are mandatory and must be obeyed: see, Taylor, at para. 3; Lima, at para. 24; Dickie v. Dickie, [2006], 78 O.R. (3d) 1, 206 O.A.C. 257, at para. 85, aff'd 2007 SCC 8, [2007] 1 S.C.R. 346, at paras. 6-7; Clark v. Clark, 2014 ONCA 175, 318 O.A.C. 66.

[49] The respondent made it clear during the trial that he has no intention of agreeing to a parenting coordinator with binding authority. Deliberate breach of court orders strikes at heart of the administration of justice and self-help remedies cannot be tolerated because they undermine the rule of law: BMO Nesbitt Burns Inc. v. Wellington West Capital Inc., [2005], 77 O.R. (3d) 161, 257 D.L.R. (4th), at paras. 27-28.

[50] No court order can ensure that the parties will communicate with each other, even when a party has agreed to do so, as in this case. These parties appear to be a loggerhead about small and major decisions involving the children. The applicant points to the fact that whenever she seeks the respondent's input or cooperation on decisions to be made, he has been silent, stalls or refuses to co-operate.

[51] I am satisfied that by resiling from his obligation regarding the parenting co-ordinator, there is effectively no final order in place with respect to decision making, as is evident by the number of court attendances to deal with an issue said to be resolved, including at this trial. Since the parties are not communicating effectively, and I find that is primarily as a result of the respondent's failure to communicate with the applicant in a timely fashion, or at all, I agree with the applicant that the joint decision-making framework has been undermined, rendering the existing terms ineffective, and not in the best interests of the children.

iii. Has there been a material change in circumstances justifying variation of the consent order?

[52] The applicant also argues that that there has been a material change in circumstances. She relies on the Saskatchewan Court of Appeal decision of Rizo v. Kendic, 2024 SKCA 64, 3 R.F.L. (9th) 105 for the proposition that a pattern of deliberate obstruction by the respondent in approving health treatments or schooling matters is more than parental conflict and impacts the child directly.

[53] In Rizo, the court was considering the question of whether a material change had occurred in the context of section 17 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) ("Act"), and whether the trial judge had employed the appropriate test. The applicant has not really addressed the two-stage inquiry for the court to determine whether there has been a material change in circumstances.

[54] Section 17(5) of the Act provides that the court must not vary a parenting order unless "there has been a change in the circumstances of the child since the making of the order." The applicant did not rely on section 17(5) in her Closing Submissions, which is the provision that governs the court's authority to vary an order. Clause (a) under s.17 (1) of the Divorce Act gives the court authority to vary, rescind or suspend, retroactively or prospectively, a parenting order or any provision in the parenting order, on application by either or both spouses.

[55] In Gordon v. Goertz, [1996] 2 SCR 27, 134 DLR (4th) 321 at para. 10, the Supreme Court of Canada stated that if the moving party is unable to show the existence of a material change, the inquiry can go no further: This is not a motion to change in the technical sense, and while the parties did not address the statute or the test, I will address the question because it was raised by the applicant.

[56] The party seeking a variation bears the onus of establishing such a change: L.M.P. v L.S., 2011 SCC 64, [2011] 3 SCR 775, at para. 31.

[57] The party seeking the change must establish on the evidence that: (a) there has been a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs; (b) the change must materially affect the child; and (c) the change was either not foreseen or could not have been reasonably contemplated by the parties at the time the initial order was made and that, if such a change had been known, "would likely have resulted in different terms": L.M.P., at para. 32; Gordon v. Goertz, at paras. 12-13; Licata v. Shure, 2022 ONCA 270, 471 D.L.R. (4th) 83, at para. 21; see: Willick v. Willick, [1994] 3 S.C.R. 670, at para. LXIV-LXVII.

[58] A material change must have some degree of continuity, and not merely be a temporary set of circumstances: L.M.P., at para. 35; Gordon v. Goertz, at paras. 12-13.

[59] The applicant argues that the respondent's non-cooperation and the parental conflict and inability to co-parent is a material change in circumstances. I am not satisfied that this is the case. She relies on the decision of Sharma J. in Kumerdjieva v. Cerasuolo, 2024 ONSC 3029, in support of her position that the conduct of the respondent amounted to a material change in circumstances.

[60] In Kumerdjieva, Sharma J. found that there had been a significant material change in circumstances that impacted the child and was not foreseen at the time of the final consent order. He noted that though the parties had high conflict in the past and difficulty communicating, there was an expectation that after the order, they would communicate consistent with the order, abiding by its terms, and participating in the parenting coordinator process.

[61] The applicant submits that the Final Consent Order contemplated that both parents would work with a parenting coordinator to make joint decision-making possible, but instead, the respondent has refused to engage with the Parenting Coordinator, failed to communicate meaningfully, and not fulfilled even basic obligations.

[62] I am not satisfied that this is a material change of circumstances based on the above facts. The respondent has a history of non-cooperation and refusal to comply with the rules and court orders, all which pre-date the Final Consent order, as did their inability to effectively communicate and co-operate. It is apparent from the evidence that at the time of the consent order, the respondent had not complied with the automatic disclosure order under r. automatic order under r. 8.0.1 the Family Law Rules, O. Reg. 114/99 (the "Rules"); he had not complied with his disclosure obligations under r. 13; he had not complied with his disclosure order of Steele J. dated October 2022 and Brownstone J. dated March 31, 2023. Those orders were necessary because the respondent had not fulfilled his financial disclosure obligation under the Rules. Mere weeks before the trial started, and over a year after Sharma J.'s consent order, Nakonechny J. became the next in a series of judges to make a disclosure order.

[63] The respondent also had a history of unresponsiveness to communications which pre-dated the order. The applicant says he has refused use the Our Family Wizard (OFW) application and ignores her emails about the children's activities and health decisions. She claimed that in September 2023, when she tried to discuss the children's activities, the respondent accused her of harassment and involved the police. This incident also pre-dated the consent order.

[64] The respondent's involvement of the children in the legal proceedings predated the consent order. His Answer, which is a public document, includes photos of him and the two children on the first page of his pleading with the caption: "Recent photos of the children with the Respondent father."

[65] The parties mistrust each other, and this appears to have been the state of affairs for many years. Their animosity and conflict have been the subject of judicial comment. From the evidence, it has been on full display to the children with the respondent involving them. The applicant says that they both record interactions with each other.

[66] A minor incident, such as their son playing with his Xbox while on his dad's parenting time, mushroomed into a dispute culminating with the applicant contacting 911.

[67] An incident involving use of a product to remove mold on the ceiling, resulted in the respondent calling an ambulance for their son N. While the evidence does support that N. may have had a reaction to the product, and the applicant minimized the incident, it is not evident to the court on the evidence that that the course took by the respondent was necessary. The evidence suggests that N. had only transitory physical reactions.

[68] I am satisfied that there has been an escalation or ratcheting up of animosity between the parties since the Final Consent Order was made and it has impacted the children who are deliberately drawn into the fray by the respondent, despite court orders to restrict this very behaviour. The requirement that the change which triggers a variation application be a material change addresses the need to protect children from "unnecessary and trivial adversarial weaponry": M. (B.P.) v. M. (B.L.D.E.), [1992] 97 D.L.R. (4th) 437, 59 O.A.C. 19, at para. 72.

[69] A cumulative unrelenting stress to a child may constitute a material change in circumstances sufficient to justify a variation order: M. (B.P.), at para. 78. While there is little evidence about the children's emotional state there is ample evidence before the court, as noted above, and below, for the court to infer that the children were subjected to emotional stress caused by their parents ongoing sparring, in which they were asked to be involved.

[70] On cross examination, the respondent admitted there had been yelling and screaming in the matrimonial home when they were both residing in it after the separation. The parties dispute whether the respondent did certain things in the home, like removing a faucet, turning of the hot water, among other things, to cause problems in the home.

[71] There can be no "boundaries" for parents to communicate about the health and wellbeing of their children. For example, when his son injured his foot while in his care, the respondent did not disclose this information to the applicant nor did he seek medical care for his son. Medical investigation and treatment were delayed for days and completed only after the child returned to the applicant's care; the child had a fractured his foot. The respondent says that that he did not know his son had fractured his foot or was in pain.

[72] After the parties reached the consent order, instead of improved communications and shared decision-making, the situation appeared to have deteriorated putting, at risk, the access of the children to timely medical treatment or the sharing of information that imperiled the children's health and wellbeing because the respondent became "territorial" about each party's parenting time.

[73] In February 2024, only four months after the Final Consent Order, N. was injured in a hockey game while on the respondent's parenting time, and the applicant emailed the respondent to tell him his son was complaining of pain and asked him to have N. medically assessed. In response, the respondent ignored the suggestion and told her to "respect boundaries" because it was his parenting time. He took N. to urgent care two days later, but refused to book his son's follow up appointment with the fracture clinic as the appointment would fall during the applicant's parenting time. When his daughter required medical attention, and the applicant tried to contact him, he sent the applicant a text message to email him. In March of 2024, only five months after the Final Consent Order, he refused to accept a call from the applicant who was attempting to reach him to tell him about his daughter's emergency visit. Instead, he dictated by what means she should communicate with him.

[74] The respondent has also repeatedly breached court orders and has showed a lack of judgment in repeatedly involving the children in the litigation. At trial, he stated that N. was about 10 or 11 at the time of the separation and G. was around 13.

[75] The respondent testified that he spoke to the children only about issues directly affecting them, and if they asked him questions. On cross examination, when he was confronted with information that dealt with adult subjects that the children supposedly made enquiries of the applicant about, he tended to avoid answering the questions, claiming he would answer questions if the children brought them up or suggested that the information came from the children themselves.

[76] Justice Brownstone's order dated March 31, 2023, expressly prohibited the parties "from discussing any of the issues pertaining to their separation, or this litigation, with the children." The respondent did not comply with this order.

[77] The respondent has since shown poor judgment since these proceedings commenced in involving the children in the litigation, did so through the trial, and continues to do so. He has not heeded the applicant's complaint about him involving the children in these proceedings nor the court order.

[78] The respondent has obtained statements from the children in support of his claim for equalization in this proceeding, only weeks before the trial was to start. Both children signed mirror statements in November 2024, which was coincidentally around the same time that Justice Nakonechny made disclosure orders.

[79] Both children state that "they have been made aware that my mother and her lawyer have listed a vehicle on my mother's court papers, specifically….", then goes on to identify the vehicle said to be held in trust for them by the respondent, and state that they have been made aware that the vehicle would be considered as part of the combined family assets.

[80] Each of the child's statement includes an embedded photo of the child when they were "little." Each child professes to understanding that they understood from the respondent that "he was holding my car in trust for me to use when I got older." Using the exact same language, they each state:

"My mother has always been fully aware of the intent of this arrangement and that this vehicle was to be kept for me when I got older. It was a gift for my future."

[81] Each child went on to state:

…I have been advised that this indicates that this vehicle is to be considered as part of my parents' combined family assets to be divided between my mother and father and that my mother is to be personally credited 50% of the value of my vehicle.

[82] The applicant suggests that she wanted the children to go to therapy to address their emotional issues from the separation. The respondent testified that he did not agree with counselling; he told the applicant that it would be up to the children. The applicant asserts that he the respondent did not support therapy.

[83] A child-focused approach should have been used to directly address whether the children needed therapeutic support, but he did not claim to have taken any steps to make such a determination.

[84] Justice Brownstone's order also dealt with therapy for the children. The operative paragraphs of the order stated:

2. The parties shall present to the children with the option of the children getting therapy. The children shall be presented this option in language that offers them an independent person they can freely talk to, solely to help them, who will not report back to their parents. The children shall be told that they have done nothing wrong, and therapy is being offered only as an independent support to them.

3. Neither party shall discourage the children from seeking therapy.

[85] Courts have repeatedly recognized that ongoing conflict is itself harmful to children's emotional and psychological health. Exposure to conflict has been called the "single most damaging factor for children in the face of divorce": Graham v. Bruto, [2007] 4867, aff'd 2008 ONCA 260, at para. 65; Mattina v. Mattina, 2018 ONCA 867. In Wreggitt v. Belanger, [2001] 23 R.F.L. (5th) 457, at para. 20. The Ontario Court of Appeal commented that: "Conflict and lack of co-operation, whatever the source, are an impediment to an effective joint parenting arrangement, as well as a source of stress for the children."

[86] The respondent has also repeatedly undermined the children's emotional and psychological wellbeing by exposing them to the ongoing conflicts, exposing them to third parties, without the consent of their mother or the sanction of the court. He appears to be impervious to the impact of his action on the children.

[87] He involved the children in the litigation, had them swear documents and had them interviewed on multiple occasions by "Vernon Beck," from Family Conflict Services. He admitted that he had Family Conflict Services speak to the children, and that he had Vernon Beck interview the children. He did so without the applicant's knowledge and consent, claiming that "the children were at an age where they were able to talk to whoever they wanted to." On cross examination, he agreed that the applicant had told him she did not want Family Conflict Services involved, and had rejected his suggestion, on multiple occasions to have them involved. He agreed that she told him that she thought that Family Conflict Services was biased.

[88] The respondent admitted on cross examination that Mr. Beck had been helping him with "certain" of his legal issues in court. He only told the applicant after the fact of Mr. Beck's involvement. He allowed the children to be interviewed on multiple occasions by Mr. Beck but claimed that it was the children who asked to speak to him. When faced with a pending parenting motion, he told the children about the motion, and allowed them to speak to Mr. Beck, without the applicant's knowledge. He admitted that before the court hearing he told both children that the applicant was seeking "sole custody" and "primary care" of them. He says it was his opinion that it was their choice "at this age" who they wanted to be with.

[89] The applicant relies on the decision of C.S. v. M.S., [2007] 37 R.F.L. (6th) 373, in which Perkins J. noted at para.117 that a similar group with which Mr. Beck was affiliated "exposed the children in this family to great risk of emotional harm." Perkins J. though had the benefit of evidence from Mr. Beck and was able to determine that the group had no legal mandate and no standing on behalf of the public to do so. Mr. Beck did not testify at this trial.

[90] On cross examination, the respondent says that he also spoke to the children about the net property statement.

[91] I am satisfied on the evidence that the respondent's failure to abide by certain terms of the Final Consent Order, his ratcheting up of the animosity between the parties, and his ongoing exposure and involvement of the children in the dispute constitute a material change in circumstances. Clarity in the decision-making responsibility will alleviate some of the conflict between the parties to which the children are now continually exposed. The respondent's long track record proves that he puts his self-interest above that of his children, and cannot be trusted to abide by agreements, which he makes with the applicant, or court orders to do what is in the best interest of the children.

[92] I find that although some of the respondent's conduct pre-dated the consent order, there has been material change of circumstances because although it would have been in the best interest of the children to have a final parenting order with a mechanism for the parties to resolve any parenting dispute when they are at an impasse, the respondent's failure to comply with his end of the bargain undermines the viability of shared decision-making being a workable solution in this case. The best interest of the children, which is the paramount consideration, dictates that the aspect of the parenting order relating to decision-making be reviewed.

B. The court may consider the parenting order on the merits

[93] The consent order was not a determination of the parties' decision-making responsibility on its merits. Where a material change in circumstances is established, the court should consider the matter anew regarding the present circumstances instead of defaulting to the existing arrangement: Gordon v. Goertz, at paras. 17-25.

[94] This court may make an order providing for the exercise of parenting time or decision-making responsibility for any child of the marriage: Act, at section 16.1. Decision-making responsibility for a child, or any aspect of that responsibility, may be allocated to either spouse or to both spouses: Act, at section 16.3.

[95] An order respecting decision-making is a parenting order. Section 16(1) of the Act provides that in making an order for parenting time or decision-making responsibility the court shall take into consideration only the best interests of the child. Section 16(3) lists factors for the court to consider in making a parenting order. Under section 16(2) of the Act, the court must give primary consideration to the child's physical, emotional, and psychological safety, security, and well-being, when considering the factors in section 16(3) to determine the best interests of the child: Act, section 16(2).

[96] The only test to be applied by the court is the best interest test. Parental rights, interests, and preferences play no role in this determination: Young v. Young, [1993] 4 S.C.R. 3, at pp. 35-36, 44, 57, 117. The child's best interests are not merely "paramount" – they are the only consideration in this analysis: Gordon v. Goertz at para. 28; Mattina.

[97] Section 16(3) enumerates a non-exhaustive list of the factors to be considered by the court in determining the best interests of the child. While the list is not exhaustive, the court "shall" consider "all factors related the circumstances of the child," including the following: the child's needs, given their age and stage of development (s. 16(3)).

[98] For the reasons below, I agree with the applicant that the joint decision-making framework is unworkable. In my view, it is in the best interest of the children that the applicant mother has sole decision making so that timely decisions may be made about the children's medical care, education, and other matters affecting their wellbeing.

i) The child's needs, given their age and stage of development (s. 16(3)(a))

[99] The children are now sixteen and thirteen years old. The children currently share their time equally between the parties. There is no parenting plan as the issue of parental time is not in issue.

[100] Since the children are still minors, they will still require their parents to make certain decisions for them with respect to third parties.

[101] On cross examination, the respondent says that he also spoke to the children about the net property statement.

ii) The nature and strength of the child's relationship with each parent (s. 16(3)(b))

[102] After the parties separated, they lived in the jointly owned matrimonial home until it was sold.

[103] The children shared parenting time with the parties, which continued under the consent order. The children have a good relationship with both parents, though the applicant says her relationship with her daughter has been affected because of the respondent's actions.

iii) Willingness to support development and maintenance of the child's relationship with the other parent (s. 16(3)(c))

[104] The applicant has shown that is willing to support the children's relationship with their father. She informs the applicant when any of the children are sick while in her care. The respondent does not do the same. As noted above, the respondent has involved the children in the litigation and exposed them to third parties, further embroiling them in their parents' messy family law litigation.

iv) The history of care of the child (s. 16(3) (d))

[105] I am satisfied that the applicant was the primary caregiver during the marriage.

[106] During their marriage, the respondent worked long hours at his business, and for a period was working full time at his business and at the TTC at the same time. He would not see the children during the weekday, but only on the weekends. He saw the children on the weekend. He left TTC in January 2023.

[107] The respondent did not challenge the applicant's evidence that during their marriage she had been the primary care giver for the children, was the person who arranged the children's extracurricular activities, attended meetings with teachers, and made the major decisions affecting the children. She would advise him of any issues which involved the children. The applicant says that it is not until after the separation that the respondent left the TTC job that he tried to spend time with the children.

[108] The respondent agreed that it was the applicant who performed the lion share of the childcare, making the children's medical appointments though he says, "she would contact me, and we would take it from there." The respondent also admitted that it was the applicant who took care of the issues related to the children's education, went to the parent teacher interviews, and took care of the children's extracurricular activities.

[109] Although the respondent testified that he was able to see more of the children after he left the TTC job, he did not indicate that he took over any of the caregiving responsibility during the marriage or after separation.

[110] The evidence reveals that decision-making with respect to the children's medical care, travel, extra-curricular activities, and general well-being has now devolved into ongoing battles, further escalating the animosity and conflict between the parties.

v) The child's views and preferences (s.16(3) (e))

[111] Under paragraph (e), subsection 16(3)) of the Divorce Act, the court must consider the "child's views and preferences" of the child unless those views cannot be ascertained. In doing so, the court must consider the age and maturity of the child.

[112] The only evidence before the court of the children's views is from the parties. The respondent says that the children are content with the current shared parenting and decision-making responsibility.

[113] Hearsay evidence is presumptively inadmissible as a matter of law unless it falls under a traditional exception to the hearsay rule. Hearsay evidence is admissible if it meets the tests of necessity and reliability: R v. Khan, [1990] 2 S.C.R. 531; R. v. Bradshaw, 2017 SCC 35, 1 S.C.R. 865; R. v. Khelawon, 2006 SCC 57, 2 S.C.R. 787; R. v. Starr, 2000 SCC 40, 2 S.C.R. 144; R. v. B. (K.G.), [1993] 1 S.C.R. 740.

[114] Out of court statements made by the children are hearsay and, to be admissible must fall within one of the principled exceptions to hearsay. In R. v. Khan, the Supreme Court of Canada held that hearsay statements by a child will be admitted into evidence where those statements are both (i) necessary and (ii) reliable: at paras. 31-32.

[115] Because of his attempt to conceal information and involve the children and enlist them to take sides, I do not accept that the views of the children as conveyed by the respondent father meets the requirement of reliability. One of the indicia of reliability includes that witnesses are a trained professionals and the witnesses do not have a personal interest: Children's Aid Society of Metropolitan Toronto v. M. (R.), [1992] O.J. No. 1097 (Ont. Prov. Div.).

[116] In this case, the respondent is not a trained professional. He has a personal interest. He has demonstrated that he is not above using the children to secure his end.

vi) The ability and willingness of each parent to meet the needs of the child (s. 16(3)(h))

[117] The claim advanced by the applicant mother for section 7 expenses, a question previously resolved by the consent order, highlights some of the conflict, which was in evidence at the trial. I am satisfied on the evidence that the applicant has attempted to shield the children from the ongoing conflict. The respondent has shown a remarkable lack of judgment and insight in embroiling them in the conflict.

[118] The respondent has also involved the children in the financial dispute involving them directly. The applicant says she learned G. was struggling in math at a parent teacher interview. She also received a call from the teacher and was told that G. had been caught cheating in math. I find the applicant's evidence that the teacher recommended additional academic support. The respondent not only refused to contribute financially to G.'s tutoring, but he also involved outsiders. The applicant's unchallenged evidence is that she received an email from the Family Conflict Services telling her that the applicant did not want G. to receive tutoring because he though she had a potential learning disability. In challenging the need for tutoring, he sent an email directly to his daughter in which he questioned her intellectual capacity. The applicant testified that the respondent permitted G. to read the email.

[119] The applicant says she received a text from her daughter and her daughter cried because her father felt that way about her. I find the applicant's evidence credible that the statement was made. The respondent's evidence is that the math teacher could have tutored G. for free. He blamed G.'s struggles in Math on her extra curricular. He admitted that he suggested that there was a possibility that she has a learning disability.

[120] The respondent's evidence that G.'s involvement in dance was affecting her grades is not credible. G. had been involved in dance since the age of 4, and was involved in competitive dance in 2020, before the parties separated. Paragraph 20(ii) of the Final Consent Order, which deals with future special or extraordinary expenses, states that "there is an expectation the children will continue with sports and activities in which they were already enrolled prior to separation, including dance, hockey, and soccer." On cross examination, he admitted that his daughter was performing well in all her other subjects and was in fact excelling in most.

[121] The respondent has also directly involved the children in the financial disputes between the parties.

[122] The respondent has, by his own admission, made decisions to stop paying or not pay for certain activities for the children based on his finances, despite an imputation of income to him of over $100,000, and a lack of any evidence before this court to support his assertion that he is only making $60,000. In doing so, he has put his interest above that of the children's wellbeing, introducing elements of instability and unpredictability in removing them from activities that they were previously involved in, and not doubt a source of support for them, and, at the same time escalating the conflict with the applicant.

[123] For example, the respondent refused to pay for Select Hockey for N., after unilaterally signing him up for the year before. He had the children interviewed by Vernon Beck of Family Conflict Services without the knowledge and consent of the applicant, and without any court direction, and attempting to have the children involved in pending motions before the court. And he refused to support his daughter's continuing in soccer and delayed the renewal of her travel plans and passport in 2023, which threatened her participation in a dance competition in the US.

vii) Ability and willingness to communicate and co-operate 16(3)(h)

[124] When making a parenting order, the court must consider the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate with one another on matters affecting the children. The parties have had difficulty communicating since they separated.

[125] The applicant says she is the one that is always communicating, and the respondent does not respond to her, and, in the result, she ends up missing deadlines.

[126] The respondent has delayed or neglected to respond to the applicant when she emails him or attempts to communicate with him about matters involving the children's health or medical or orthodontal treatment, education (tutoring for G.), their daughter's dance schedules and competitions, their son's braces, among other things, without any reasonable explanation for his behaviour.

[127] In my view, the applicant has demonstrated that she is able to co-operate and involve the respondent in decisions to be made for the children. The respondent has not shown a reciprocal inclination. Instead, co-operation and communication, he has repeatedly made unilateral decisions about the children and justified them on the basis that it was his parenting time, or that the children could make their own decision.

viii) Any family violence - (s.16(j)

[128] While this is a high conflict case, there is no family violence involved. The respondent admitted that he attempted to get the Office of the Children's Lawyers involved in the case, but they declined.

C. Conclusion on variation of parenting provisions of consent order

[129] In my view, the overwhelming evidence supports an order for the applicant to have sole decision-making responsibility. The respondent has repeated refused to comply with court orders related to parenting. The applicant's concerns regarding the timeliness in the respondent's responding to medical decisions of the children, decisions regarding their longstanding extra-curricular activities, involving the children in the litigation, exposing the children to be interviewed by unauthorized third parties about the litigation, without the knowledge or consent of the applicant mother, making his daughter aware that he questioned whether she was disabled, and refusing to comply with his part of the bargain about the resolving disputes in the decision making process, all support the applicant's position that it would be in the best interest of the children for her to have sole decision making responsibly.

[130] Because of the respondent's clear intention to follow no direction other than his own, his track record of ignoring court orders, and his history of putting his interest above that of the children, I agree with the applicant that she should be awarded sole decision-making responsibility.

D. Section 7 expenses/joint bank account

i) Section 7 – consent order

[131] The applicant seeks an order enforcing Sharma J.'s Final Consent Order regarding the section 7 expenses, common expenses, and monthly deposits by the respondent to a joint account.

[132] The applicant asserts that the respondent has not paid his proportionate share and has unilaterally withheld funds, forcing her to cover the children's costs alone.

[133] The respondent says that he should not be responsible for paying some of the expenses, which he did not agree to because of his finances. He says that he only earns $60,000 a year and testified that his business is struggling. The respondent has repeatedly stated during the trial that he took certain actions because of his financial situation.

[134] I must reject the respondent's evidence. He conceded that he has not provided tax information to the applicant beyond 2022. He says that he is "still working" on his 2023 taxes. Income has already been imputed to him in the amount of $101,851, for the purpose of support, and that order is presumed to be correct when it was made: Willick v. Willick, [1994] 3 S.C.R. 670, at para. XVIII. The respondent has not brought any variation proceeding.

[135] The respondent does not dispute that he has not paid some of the section 7 expenses. The Final Consent Order provides that the children's activities, established before separation, were to continue.

[136] Certain of the expenses may be labelled as extraordinary expenses and predate Sharma J.'s order. An extraordinary expense is one that given the combined income of the parties would not be incurred for the children as a matter of course: Celotti v. Celotti, 40 R.F.L. (6th) 411; Park v. Thompson, [2005] 77 O.R. (3d) 601, 252 D.L.R. (4th) 730. Brownstone J. stated in her March 31, 2023 order that "[s]pecial and extraordinary expenses shall be agreed to in advance, while recognizing that the children should continue in activities in which they are already enrolled."

[137] The applicant is seeking repayment of $6,382.53 for the expenses associated with extracurricular activities identified in Exhibit 13 as follows:

[138] I find that the respondent is in breach of paragraph 18 of the Final Consent Order of Sharma J. For the reasons below, I have concluded that the respondent shall pay his share of the expenses 1 to 15 of Exhibit 13, which amounts $5,582.53.

[139] The applicant also seeks reimbursement of $634.57 for a confirmation outfit for their son. The respondent agreed that the applicant suggested that both contribute to the costs of a confirmation outfit for their son.

[140] The respondent has not provided a reasonable explanation for refusing to share the cost of the confirmation outfit purchased by the applicant. On cross examination he conceded that the applicant had suggested that the applicant had suggested that they share the costs of the suit. He testified that he told her he would pay for his own separate suit.

[141] I reject the respondent's position that he did not agree to them because dance was affecting her education. The parties' daughter expenses related to her dance, dance rehearsals, dance competition, and related paraphernalia and travel expenses, are governed by the Final Consent Order and should be borne by the parties. Additionally, I find the applicant's evidence that G. was doing well in school, and the only course she had been struggling in was math credible.

[142] With respect to Select Hockey, it was the respondent himself who registered his son for this more expensive program without any notice or consultation to the applicant. I do not accept his evidence that he told his son that he told his son he could not pay for half, and he agreed.

[143] I do not accept the respondent's argument that he refused to pay for G.'s soccer because she had knee problems. His daughter had been in soccer since ethe age of 12. The applicant's uncontested evidence is that G. had been cleared to return to soccer. The respondent evidence is also not credible as G. continued with her dance, and was dancing competitively well after the soccer receipt was incurred.

[144] The respondent's explanation for refusing to contribute towards his daughter's math tutoring expenses, are not reasonable. The fact that she was caught cheating should, in my view, be a reason to support this method of assisting her to succeed in her course. He offered no credible evidence that her teacher was available to provide free tutoring.

[145] With respect to the contribution for N.'s birthday party, the respondent's objection to paying is that the event occurred on the applicant's parenting time. I am not satisfied from his evidence that this expense should not be shared between the parties. He was certainly free to have his own birthday party for his son, as he claimed he did.

[146] The evidence before the court suggests the respondent appeared to have been operating under the assumption that what occurred on the applicant's parenting time, she should be responsible for, and what occurred on his parenting time, he should be responsible for; such an assumption undermines the shared parenting model and creates divisive and conflict.

[147] The respondent testified that he agreed to pay N.'s high school registration fee but has not gotten around to doing so yet.

[148] He testified that he initially agreed to contribute to the children's friend birthday gift, but now says it has been overwhelming. In my view, he must honour the outstanding agreement as the applicant has borne the costs for the gifts.

ii) Contributions to Joint Bank Account

[149] The respondent has not contributed the $200 a month contemplated by the Final Consent Order of Sharma J. to cover the children's expenses. He says that he has proposed a cap the children's expense at a budget and has proposed several budgets but says the applicant has not agreed.

[150] The respondent does not contest the applicant's evidence that he has not deposited the $200 a month contemplated by Sharma J.'s order to the joint account for the children's expenses. He says that the applicant has removed funds from the joint account without his consent. In his closing submissions, the respondent asked the court to make cap the children's expenses to $1,000 per child because of his "current financial situation." He also asks that the joint bank account be closed.

[151] The respondent has not sought any variation of the terms of the order dealing with extracurricular expenses or the joint account.

[152] The respondent says that he has not been made the contributions because the respondent has removed money from the account without his consent. He does not contest the applicant's evidence that he stopped making the deposits in September 2024.

[153] I find it more plausible that the respondent did not respond to communications within three days, as the applicant dates. The evidence before the court, including the agreed upon facts, support a pattern of non-communication and unresponsiveness by the respondent.

[154] There is no credible evidence before me that the applicant is unilaterally removing funds without first reaching out to the respondent. The respondent has not tendered any evidence of the occasions on when these incidents have occurred.

[155] The provisions in the final consent order which requires each party to deposit $200 monthly to a joint account to cover the children's expenses is binding on the respondent. Moreover, he has repeatedly referred to his financial struggles during the trial without making the necessary disclosure. The order imputing income to him and the consent order which sets out his financial obligations remain in force and are binding on him. As the applicant pointed out, he did not amend his Answer to seek a variation of the Final Consent Order.

[156] The respondent shall contribute $2,600 towards the joint account which represents a shortfall from September 2024 to September 2025.

D. Is a party entitled to a payment for equalization of family property?

[157] Section 5 of the Family Law Act, R.S.O. 1990, c. F.3 ("FLA"), provides for the equalization of net family properties upon marriage breakdown.

[158] The applicant seeks an order for the equalization of net family property and asks the court to draw an adverse inference against the respondent because he did not provide full financial disclosure despite court orders and numerous requests. She submits that she owes an equalization payment of $3,988.78, which she asks the court to pay out of the net proceeds of the sale of the matrimonial home.

[159] The respondent says that the applicant is to pay him $118,898.78.

[160] The parties have provided a comparative net family property statement and reached agreement on most of the figures, except for the value of the respondent's business, CFD Auto, ownership of, and the valuation of a 1967 Ford Mustang, a 1968 Ford Mustang, and a 1992 Ford Mustang on the date of valuation (separation).

[161] I have not accepted either calculation. The purpose of the equalization of net family property is to ensure that both spouses share in the growth of certain assets during their marriage. On the evidence, discussed below, the respondent has attempted to conceal assets, by suggesting that they are being held in trust for the children, has refused to comply with court orders for disclosure, and has refused to provide valuations for his business and assets. Because of the lengths he has taken to keep information from the applicant, the extent of non-disclosure or incomplete disclosure, and the absence of valuations, I agree that this court may infer that the evidence would not be helpful to the respondent.

i) Agreement re: 264771 Ontario Inc.

[162] Neither party included a valuation of 264 Ontario in the comparative net family property statement. Both agree that this asset should not be included in the calculation of the NFP.

[163] The applicant is seeking relief under the Business Corporation Act, R.S.O. 1990, c. B.16 for alleged oppressive conduct by the respondent and the company.

ii) CFD Auto Collision Centre Ltd.

[164] The respondent owns 100% of the shares of CFD Auto, which is an auto repair shop. The company repairs automobiles.

[165] Section 8 of the FLA requires each party to serve and file a statement of property disclosing particulars of their property, debts and other liabilities as of the date of marriage and the valuation date. Rule 13(6) of the Rules provides that a party must make full and frank disclosure in their financial statement, that is, disclose the existence of all assets and their true values.

[166] There are several disclosure orders requiring the respondent to produce personal and corporate financial statements, even up to the time of trial. For example, in her order dated October 5, 2022, Steele J. ordered that the respondent provide business income statements and bank accounts statements for CFD Auto for the previous five years.

[167] By order of Brownstone J. on March 31, 2023, the respondent was to provide financial disclosure of both CFD Auto and 264 Ontario including minute books, general ledgers and balance sheets, corporate tax returns, financial statements and identification of all banks, investment and other accounts held by the company. The respondent did not comply with the order.

[168] Weeks before the trial was set to commence, Nakonechny J. made a production order on November 13, 2024, at a Trial Management Conference, requiring the respondent to produce corporate documents. She directed that the respondent provide disclosure regarding the shareholder's loan and provide documents relating to the loan from his mother.

[169] The respondent testified that it is his "opinion" that the business is valued at $25,000. On cross examination he stated that his opinion is based "solely on the equipment." In chief, he listed several pieces of equipment which he says CFD Auto owns and points out that they are old, including a spray boot, which he dates to the early 1980s, and a compressor which dates to the 1990s. He says CFD Auto also owns a frame machine, a floor jack, jack stands, among other equipment. The respondent testified the business owns a lunch table. He says the paint system is on consignment, and the "hand tools" belong to the employees. It is noteworthy that CFD Auto's Balance Sheet refers to "furniture and fixtures" totaling $1,122. No separate amount is listed for equipment.

[170] In her amended Application, the applicant sought an order for the respondent to provide a valuation of his tools and equipment associated with his automotive business.

[171] The applicant says she could not obtain an appraisal of the heavy equipment because the respondent would not allow her onto the premises. The respondent does not dispute that he prevented her from going on to the property, but claimed he had concerns.

[172] The question is what value CFD Auto had as of the date of separation. The equalization process must be based on fair valuation and can only be achieved when both parties fulfill their disclosure obligations.

[173] The applicant submits that an adverse inference is warranted, as the respondent's refusal to provide disclosure appears to be a deliberate attempt to conceal the true value of his assets or misrepresent his financial situation.

[174] In Este v. Esteghamat-Ardakani, 2018 BCCA 290, 12 B.C.L.R. (6th) 118, the British Columbia Court of Appeal acknowledged the often-cited passage of Cunha v. Cunha, [1994], 99 B.C.L.R. (2d) 93 at para. 9: "non-disclosure of assets is the cancer of matrimonial property litigation." The Supreme Court of Canada went on to endorse Cunha using similar language. Canada's highest court has repeated stated that the failure to disclose material information is the cancer of family law litigation: Leskun v. Leskun, 2006 SCC 25, 1 S.C.R. 920, at para. 34 and Michel v. Graydon, 2020 SCC 24, 2 S.C.R. 763 at para. 33.

[175] The Ontario Court of Appeal has repeatedly stated that the most basic obligation in family law proceedings is financial disclosure: Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, at para. 11; Manchanda v. Thethi, 2016 ONCA 909, 84 R.F.L. (7th) 374 at para. 13. The requirement to disclose is immediate and ongoing: Roberts, at para. 12. The Ontario Family Law Rules now include an automatic order under r. 8.0.1 for disclosure. The automatic order includes the timeline for service of financial documents.

[176] Financial disclosure is automatic and should not require court orders: Roberts, at para. 13. In this case, there were at least three court orders which dealt with the respondent's disclosure obligation. He still failed to comply with those orders, and ultimately, provided incomplete disclosure.

[177] The onus is on the party asserting a value to provide credible evidence to support the value claimed: Virc v. Blair, 2017 ONCA 394, 138 O.R. (3d) 191, at para. 59; Homsi v. Zaya, 2009 ONCA 322, 248 O.A.C. 168, at para. 38; Menage v. Hedges (1987), 8 R.F.L. (3d) 225 at para. 29. This, in my view, obliges a party to provide a realistic value for each asset, not a guess or fictional amount. When a value cannot be readily ascertained, or there is serious dispute, an independent valuation may be required, such as for a pension or a business: see, for example, Pennock v. Pennock, [2000] O.T.C. 947, 4 R.F.L. (5th) 293; Dearing v. Dearing, [1991], 37 R.F.L. (3d) 102; and Katz v. Katz, [1989], 21 R.F.L. (3d) 167. Failure to provide credible evidence to support a value may result in a value being assigned which is less advantageous to the party claiming the asset.

[178] The respondent has provided no credible evidence as to what assets the business owned on the date of separation. He argues that he is the company, and the company is him. There is no valuation by an expert. The respondent testified that he did not need to value the company for his own purposes. He conceded that the applicant had asked him to value the company.

[179] The applicant has valued the business based on the 2021 Financial Statement, and using a rudimentary approach, by subtracting liabilities from assets. And arrived at a value of $50,000. She says the business is valued more than this. I must agree with the applicant that the valuation is in fact more than her $50,000 guesstimate.

[180] I must reject both valuations of CFD Auto. To accept either would permit the respondent to take advantage of his non-disclosure, breaches of court orders, and failure to provide a valuation of his interest in the company on the date of valuation. The court cannot sanction such egregious conduct on the part of the respondent.

[181] There are two approaches to the valuation of a business liquidation value and going concern. Because of the respondent's flagrant non-disclosure, late disclosure, and the absence of any opinion from someone who has been able to review the documents, it is not clear to the court what method of providing a guesstimate of the equipment owned by the business as being the appropriate method. In his Closing Submissions, the respondent argued that he was the business, and it would not survive without him. There is certainly no valuation of the intangible asset that is the business's reputation, which is to say, its "goodwill."

[182] The respondent has also refused to co-operate with the applicant in valuing the equipment and other assets owned by CFD Auto. I am therefore not satisfied that the respondent's approach of guesstimating the value of only the tangible equipment owned by the company, is the appropriate approach, as I am satisfied, on the evidence before me, that C.F.D. Auto has another valuable asset, the existence of goodwill, which has not been valued. A fair market value of a company is based on what a prudent arm's length purchaser would pay for this company. The respondent has other intangible assets for which the court has no valuation, including customer lists, relationships with suppliers and vendors.

[183] I must conclude that his refusal to provide full disclosure, even when repeatedly ordered to do so, is because the disclosure would not have been of assistance to him.

[184] I have rejected the applicant's method as well which also involved deducting the liabilities from the assets on the 2021 financial statement, and because it too does not consider the value of the goodwill.

[185] Additionally, the applicant's approach does not assist the court in determining whether this approach is appropriate for this closely held corporation. The applicant herself has repeatedly underlined the extent of non-disclosure by the respondent and has asked that the court make an adverse inference in her favour. She says that the respondent has not provided any documents to prove the liabilities in the documents and was unfamiliar with the numbers in his own financial statements, blaming the accountant for the numbers. On cross examination, the respondent could not recall if he provided documentation to his accountant to support the accounts payable and accrued liabilities in existence at the time.

[186] The applicant's attempt to guess whether a certain number should be higher or lower is not helpful to the court. The respondent did not challenge her evidence that he has not produced any underlying documents to support the numbers in the financial statement.

[187] The applicant also testified that the respondent received cash from customers for the majority their marriage and used cash to pay for things. The respondent says that the only cash he received was for "deductibles." I prefer the evidence of the applicant, to that of the respondent, who has gone to great lengths to conceal the value of the CFD Auto.

[188] For the reasons below, I must impute a fair market value of the company if the company were sold as a going concern as of the valuation date of August 2021 in the amount of $200,000.

[189] The respondent should not benefit from his failure to disclose financial information and his repeated breach of court orders. He admits that his business receives cash, in the form of "deductibles" but there is no evidence before the court as to how much that may be, and because of his lack of transparency in this litigation, and attempts to conceal information, it would have been helpful to the court to have that evidence. I accept the applicant's evidence about the cash side of his business and will infer that it is likely lucrative. She testified that he liked to deal in cash and paid for many things in cash. I find her evidence to be credible on this point.

[190] From the respondent's own evidence, CFD Auto has been in business for almost two decades. On cross examination, the respondent admitted that he has a client base and that the clients pay their bills. The general ledger that he has provided shows a solid client base. He agreed that he has a client base, and he also agreed that they pay the bills. The General Ledgers that he has produced shows a strong client base. In addition to body repair, he provides estimates to insurance companies.

[191] The court infers from CFD Auto's revenue, the business has established a reputation in the industry. In this case, reputation is synonymous with its goodwill. The "goodwill" of a business has been defined as the "fixed and favourable consideration of customers arising from established and well-conducted business… It means every positive advantage that has been acquired by a proprietor in carrying on his business, whether connected with the premises in which the business is conducted, or the name under which it is managed, or any other matter carrying with it the benefit of the business: 599960 Ontario Inc. v. Taylor Steel Inc., [2000], 4 C.P.R. (4th) 135, at para. 22, citing Black's Law Dictionary, 5th ed.

[192] Had the respondent provided a valuation of the company, the court would be in a better position to determine what a person at arm's length would be willing to pay for the business. CFD Auto appears to have a good earning record, and certainly the respondent did not indicate that there was anything that would impact its earning potential.

[193] The party who asserts a value has a duty to provide credible evidence as to its value: Virc v. Blair, 2017 ONCA 394, 138 O.R. (3d) 191, at para. 59; Homsi v. Zaya, 2009 ONCA 322, 248 O.A.C. 168, at para. 38. In Homsi v. Zaya (2009), 65 R.F.L. (6th) 17 (Ont. C.A.), at para. 37-38, the Ontario Court of Appeal re-affirmed this onus and recognized that where there is a paucity of evidence as to value, a trial judge may only rely on the limited evidence available to him/her.

[194] The respondent says that CFD Auto had two employees who has been with him for sever al years in the capacity as contractors and as employees. The fact that he has had steady assistance of outside help supports the view that CFD Auto being is a thriving small business.

[195] Although the respondent did not address the industry, or the outlook for the industry, the limited financial evidence from him indicates that the business had revenues of $271,939 in 2020 and $319,558 in 2021, and (from the documents filed in the joint brief – only agreed to as to authenticity), the business had sales of $334,047 in 2022. I take judicial notice of the fact that the pandemic was declared in March 2020, but no conclusion can be drawn from that observation.

[196] The respondent provided an unaudited Balance Sheet and Statement of Earnings and Deficit for CFD Auto as of July 31, 2021. CFD Auto's balance sheet as is of July 31, 2021, and the date of separation is August 9, 2021. Neither party has suggested that the seven-day difference between the two dates would have any impact on the figures in the on December 28, 2021, three days earlier, we used any differences between these two dates. The evidence before the court reveals that CFD loaned $83,000 to the numbered 264 Ontario only weeks after the parties separated. The respondent was not asked about this particular loan on cross examination, but it is not surprising because of the late disclosure of the financial information for the businesses in the weeks and days before the trial.

[197] At trial, the respondent appeared to be unfamiliar with the figures in his own financial statement, at times suggesting that the accountant was responsible for the numbers. This is quite surprising as he is the sole shareholder and director of CFD Auto. He has not provided an explanation as to why in August 2021, CFD Auto [i] would be lending or transferring $83,000 to the numbered company, 264 Ontario, which he controlled, and around the same period that the vendor take back mortgage (" VTB mortgage ") on the commercial premises was to expire. The loan was made the date of separation but calls into question the respondent's credibility around this transaction. He has not provided any evidence directly from his mother to confirm that she loans him the $80,000. It is not clear to the court whether she was unable. Beyond that, the documentary evidence that he has produced in the litigation is contrary to his testimony.

[198] There are several items on the balance sheet which would require disclosure and an explanation for which there is now, and adequate disclosure $109,715 for "purchases", as well as the significant amounts for both subcontracting and wages and salaries. The respondent has not provided the underlying documents to support the numbers in the document.

[199] A party's failure to present relevant evidence to support their position may result in an adverse inference. This includes disclosure not made or a necessary witness not called to testify: see, Levesque v. Comeau et al., [1970] S.C.R. 1010; Parris v. Laidley, 2012 ONCA 755. The best evidence rules mandate that documents relevant to an issue are produced: Marchese v. Marchese, 2017 ONSC 6815, at para. 23. In this case, I draw an adverse inference and conclude that CFD Auto had the financial wherewithal around the time the parties separated to make a significant loan to the respondent's related company, 264 Ontario.

[200] By refusing to retain a professional to provide a valuation of the business, he was able to continue his non-disclosure and has prevented the court from having a true picture of the value of the company. The court may draw adverse inferences against a party who withholds full financial cooperation, provides incomplete disclosure, and provides no coherent alternate valuation: See, Carter v. Carter, 2024 ONSC 5414, 6 R.F.L. (9th) 15.

[201] CFD Auto's financial statement as of July 2021 indicates the company has $119,504 in assets, and liabilities which includes two interest free long-term loans: a $30,000 loan and a $42,683 "due to shareholder loan." There is no information before the court as to when these loans were made. The respondent himself claimed that the $30,000 loan went back too far, and he could not remember what it related to. There is therefore no evidence before the court that this is a valid a loan. The respondent does not suggest that the loan was to a third party.

[202] In my view, the $30,000 should be viewed as part of the assets to the company, as I am inferring that the respondent, as shareholder, owes the money to the CFD. Similarly, there is no evidence of a $42,683 shareholder loan. Because of the respondent's inability to recall what the loans relate to, the lack of disclosure demonstrating these loans exist, I draw an adverse inference that the loans do not exist.

[203] The respondent has provided contradictory evidence regarding the rental payment by CFD Auto to the respondent company, 264 Ontario. There is no underlying evidence showing that CFD Auto paid rent to 264 Ontario. I am not inclined to accept the General Ledger as proving this fact because there are two assignments of rent documents from 264 Ontario to the Nifo Holdings Inc. Nifo provided a VTB mortgage to 264 Ontario. The only underlying evidence of rent paid is from 264 Ontario to Nifo.

[204] Similarly, the respondent has not provided any underlying documents to support the liabilities listed: bank overdraft ($16,278) and accounts payable and accrued liabilities ($47,293). On cross examination, the respondent testified that he could not provide an explanation of the $47,293, because it went back to 2021.

[205] In addition to his apparent unfamiliarity with the numbers in the financial statement for a company in which he owns all the shares, the contradictions between his testimony and the documents filed at trial, I note that the tax returns for CFD Auto are not actual real tax returns. The documents indicate that they are not to be filed with CRA, and again, this is in breach of existing court orders. The respondent likely assumed that this would be overlooked as it was not raised by the applicant who, no doubt, having been served with documents on the eve of trial had no time to appreciate the deficiency. Again, I draw an adverse inference from the respondent's breach in disclosing proper tax returns for the corporation.

[206] Willful non-compliance with disclosure must be considered egregious and exceptional: Manchanda, at para. 13. I am satisfied that the respondent has deliberately and intentionally not disclosed adequate financial information to the applicant and has deliberately not provided any valuation of his interest in CFD Auto. I am satisfied that because of the respondent's failure to meet his most basic disclosure obligation, even in the face of several court orders, the court ought to draw an adverse inference from his failure to do so.

[207] The respondent has also failed to meet the onus of proving the value of his interest in CFD Auto. On the evidence, CFD Auto has a solid client base, which pays their bill; the company is able to generate over $300,000 a year; it is able to loan large sums of money to the related company; and, its longevity and ability to generate significant cashflow, is evidence of value in its goodwill, and in the result, I would imputed a value of $200,000 as being the respondent's interest in the company on the date of valuation.

iii) Ownership and value of the three vehicles

(1) 1967 Ford Mustang

[208] The applicant asks that, in the absence of a valuation by the respondent, that the court accept valuations of the three vehicles from Auto Trader and Classique Cars Listings. I ruled during the trial that such evidence was admissible.

[209] The applicant argues that the respondent owns the three vehicles, namely: a 1967 Ford Mustang, a 1968 Ford Mustang, and a 1992 Ford Mustang. She says that the 1967 Ford Mustang should be included in the calculation because the respondent has not provided any documentation that the vehicles are in held in trust for the children. She acknowledges that before they separated, the respondent had promised that the vehicles would benefit their children in the future.

[210] I find that the 1967 Ford Mustang and the 1968 Ford Mustang are owned by the respondent, and as such, these vehicles constitute property under section 4 of the Family Law Act and must be included in the calculation of the respondent's net family property. He admitted both vehicles were in his name. He admitted that he has no formal trust agreement. He says it was "all oral." I do not find the respondent to be credible on this point.

[211] Under section 4(1) of the Family Law Act, "property" is defined broadly and encompasses "any interest, present or future, vested or contingent, in real or personal property," and even extends to "property disposed of by a spouse but over which the spouse has…a power to revoke the disposition or a power to consume or dispose of the property."

[212] In this case, the 1967 and 1968 vehicles were owned by the respondent on the date of valuation, and any future intention is entirely speculative. Where assets are under the exclusive control of a spouse and no evidence adduced to show that a trust was irrevocable or that spouse had relinquished beneficial interest remain part of a spouse's net family property: Lampron v. Lampron, at para. 5; Ouslis v. Ouslis, 2016 ONSC 6572, at para. 77.

[213] Beyond that, the respondent has gone to great lengths to restrict, and as the applicant asserts, conceal, the information and documents before the court. For the same reason, I would reject the statement from the parties' daughter obtained by the respondent from her just weeks before the trial, wherein she set out her understanding, as told to her by the respondent. Not only is it double hearsay at times, but the real goal of the statement is apparent – that is- to avoid the vehicle being included in the calculation of family property.

[214] The respondent testified that the 1967 Ford Mustang was valued at between $35,000 to $40,000. He based his valuation on the fact that the vehicle was certified and drivable. In his Closing Submission, the respondent stated that it was his "professional opinion" that the 1967 Mustang was valued between $30,000 to $40,000.

[215] At the trial, the respondent had sought to file a "report" prepared by an individual whom he claimed was a "certified appraiser" with the Ministry, though no curriculum vitae was provided, regarding the value of his vehicles. I ruled that he could not file the report because it was produced late, there were repeated breaches of the court ordered deadlines, the applicant would not have an opportunity to respond, and the author of the report would not be available for cross examination.

[216] The respondent's valuation is essentially based on his evidence that the vehicle is certified and drivable. His valuation is not supported by any professional valuation, and I am not satisfied that he has the qualifications to provide such a valuation, although I permitted him to provide opinion evidence as a lay person on the value of the vehicles, given his education and work experience: see, Graat v. The Queen, [1982] 2 SCR 819.

[217] I am not persuaded that the respondent has the requisite expertise. He pursued an automotive major at Central Technical High School. He obtained a 310b body man/painter license in 1998 and has over thirty years' experience dealing with automotive body and paint. However, on cross examination, he admitted that he was not a licensed mechanic, and that he was not qualified to appraise antique (classic) vehicles. And, although he testified that his estimates were based on the costs of repair and "value," he also admitted on cross examination that he does not have the qualifications to estimate antique vehicles. He testified that he provides estimates for repair and value to insurance companies, but did not indicate whether he did so for antique vehicles as well.

[218] The vehicles in question are considered "classic" vehicles. It is not clear to the court the extent to which such factors as mileage and repair records would have an impact, nor is there any evidence before the court. He did not testify about the model of his vehicles, the mileage on them, or their repair history. Presumably, the condition of the vehicle and the demand for the vehicle may have an impact on the value, but again, no credible evidence was before the court, and the respondent did not provide a professional appraisal. On cross examination, the respondent admitted that he is not qualified to appraise classic vehicles. He does however provide estimates for repair and value to insurance companies.

[219] I am also reluctant to accept the respondent's valuation because of his attempt to deny ownership of the vehicle to excluded it from calculation as part of family property; his lack of disclosure, breach of court orders, and lack of valuation, supports an adverse inference being inferred with respect to his conduct. Therefore, his valuation is not credible. Lay opinion testimony, and concluded that such opinion, when not supported by expert qualifications or independent documentary evidence, should be afforded little weight: see, Johnston v. Johnston, 1997 CarswellOnt 3074, at paras. 27-31.

[220] The only objective evidence as to what the vehicle was worth in 2016, five years before the date of separation, is from the insurance document. The applicant testified that she paid the premium for insurance for this vehicle in 2016, which valued the vehicle at $60,000. The respondent provides no explanation as to why a "classic" vehicle would decrease as opposed to increase in value. He has not provided any objective evidence to support his change in the valuation of the 1967 Mustang vehicle.

[221] The vehicles in question are "classic" vehicles. It is not clear to the court the extent to which such factors as mileage and repair records would have an impact, nor is there any evidence before the court. He did not himself testify about the model of his vehicles, the milage on them, or their repair history. Presumably, the condition of the vehicle and the demand for the vehicle may have an impact on the value, but again no credible evidence was before the court, and the respondent did not provide a professional appraisal. On cross examination, the respondent admitted that he is not qualified to appraise classic vehicles. He does however provide estimates for repair and value to insurance companies.

[222] The applicant urges the court to accept a value of $90,000 based on the prices listed in AutoTrader and comparable online sources which valued the year and model of this vehicle at between $89,000 and $145,000.

[223] In her Closing Submission the applicant argued that the AutoTrader listings offer transparent indicators, reflecting actual asking prices set by sellers on the open marketplace. In my view, this argument appears to invite the court to take judicial notice of how the pricing is established, and I decline to do so, without at least the consent of the parties. AutoTrader has been described as "an online marketplace for car purchasers and sellers": 1912-09042 (Re), 2021 ONSBT 564, at para. 4. In my view, the court need not decide the issue because courts have considered prices listed in AutoTrader and Canadian Black Book: see Stadig v. Stadig, 2013 ONSC 7334; Bright v. Leslie-Bright, 2011 ONSC 2336; Bennett v. Bennett, 2021 BCSC 1631.

[224] The caselaw establishes that the court may rely on the best evidence in determining value: Broadfoot v. Broadfoot, 2011 ONSC 7259; Jacobs v. Jacobs, 2011 ONSC 2699. I adopt Nolan J.'s comments in paragraph 41 of Jacobs. While the B.C. case of Muraca v. Dunsmore, 2022 BCSC 279, is not binding on this court, there is some authority for a court relying on internet searches of the average asking price of a vehicle: see, Muraca, para. 43.

[225] In Hamilton v. Hamilton, 2005 18 R.F.L. (6th) 115, the parties could not agree on the value to be assigned to a 1992 Chevrolet Astro van. At paragraph 7 of the decision, C. Aitken J. accepted the valuation from AutoTrader to assist the court with the valuation. One party had not provided a valuation for the van. In Bright v. Leslie T. Maddalena J. relied on AutoTrader to determine the valuation of a 2003 Lincoln Navigator: paras. 42-44. The other party did not provide a basis for their valuation.

[226] In Stadig, Belch J. referred to estimates provided by one side from Canadian Black Book to assist the court in deciding the valuation for the vehicle after repairs. Belch J. also referred to the respondent's reliance on AutoTrader, and compared various factors including mileage and certification, noting the respondent's value did not take into account repairs but used AutoTrader as a basis for determining the value of the vehicle.

[227] The only objective evidence as to what the vehicle was worth in 2016, five years before the date of separation, is from the insurance document. The applicant testified that she paid the premium for insurance for this vehicle in 2016, which valued the vehicle at $60,000. The respondent provides no explanation as to why a "classic" vehicle would decrease as opposed to increase in value. He has not provided any objective evidence to support his change in the valuation of the 1967 Mustang vehicle.

[228] Therefore, the court accepts that the best evidence is that which is presented by the applicant in the listings in the AutoTrader and Classic Cars listings, and I accept the applicant's valuation of $90,000.00 on the date of valuation. The respondent's lack of disclosure, breach of court orders, and lack of valuation, supports an adverse inference being inferred with respect to his conduct. Therefore, his valuation is not credible.

(2) 1968 Ford Mustang

[229] With respect to the 1968 Ford Mustang, the applicant says the vehicle has been partially restored, but the respondent claims that it is a "shell." The applicant asserts that the respondent removed the vehicles so that she could not have access to value them.

[230] The applicant suggests that comparable listings on AutoTrader indicate values of up to $110,000.

[231] The respondent says that it is his "professional recommendation" that the value of the vehicle is between $5,000 and $7,500. He says that the vehicle "does not run" and is not certified.

[232] For the reasons above, the court rejects the respondent's valuation. I accept that some work may have to be done to the vehicle, but the nature and extent of the work to be completed, and the estimate for competing the work is best known to the respondent. He has not provided a valuation. I do not accept that the vehicle is just a "shell." On the evidence, the respondent has done all he can to minimize the assets he owned on the date of valuation.

[233] In my view, the applicant's valuation is too high but based on the estimates she has provided from the same source, I would value the 1968 Ford Mustang in the amount of $85,000.

(3) 1992 Ford Mustang

[234] The parties dispute whether the respondent owned a 1992 Ford Mustang. The applicant assigned a value of $20,000 to the vehicle attributable to the respondent.

[235] The respondent denies that he owns the vehicle.

[236] As for the 1992 Mustang, while I accept, as more credible, the applicant's evidence that the respondent owned vehicle at one point, she has not proved on a balance of probability that the respondent owned the vehicle on the date of valuation.

[237] The respondent says the vehicle was left by a client for restoration and repair. He claimed it took over three years to complete the work. The applicant does not contest that the vehicle had belonged to a client but says that the respondent had repossessed the vehicle from the client. She completed a VIN search but presents no evidence that the vehicle was owned by the respondent on the valuation date.

[238] For the same reason, I would reject the evidence of the buyer's package relied upon by the respondent to prove that the vehicle was owned by a third party, as that information was obtained in February 2024, well beyond the valuation date.

[239] In any event, I would not be prepared to assign any value to this vehicle. The ownership document shows the vehicle valued at zero dollars, and the vehicle was previously assigned a "salvage" value. While this is not conclusive as to the value of the vehicle, especially if it had been rebuilt, I am not inclined to speculate on the condition of the vehicle on the date of valuation, and that is assuming the respondent owned it on that date.

iv) Conclusion re: Net family property

[240] For the reasons above, after adjusting the figures in the calculation for the three vehicles and the respondent's interest in the company, I find that the respondent owes the applicant an equalization payment of $56,011.23.

E. Is the applicant entitled to relief for oppression?

[241] 264 Ontario is a holding company. The company was incorporated on July 27, 2018. The applicant and the respondent each own 50% of its shares. The respondent is the president and secretary of the company. At trial, the respondent testified that he was also the treasurer, although there are no corporate documents identifying him as such.

[242] 264 Ontario purchased 337 Bering Avenue in September 2018 from Nifo Holdings Inc. The parties agree that the reason for the purchase was so that the CFD Auto could lease the commercial space for its body shop. The respondent owns 100% of the shares in CFD Auto.

[243] The applicant says that she agreed to this arrangement because she thought it would be a joint enterprise. She says that the respondent has engaged in conduct that is oppressive, prejudicial, and unfairly disregarded her rights and interests as an equal shareholder.

[244] At trial, she testified that she knows nothing about the company, and had received no information from the respondent, in the six years of the company. When the mortgage on the commercial property was up for renewal, she says she was advised to go to the bank and look at some numbers but, says she was not provided any information to make any decision. She says she was concerned about their financial situation at the time. The applicant's uncontested evidence is that loans were taken out that she knew nothing about.

[245] The applicant seeks relief from oppression under section 248 of the Ontario Business Corporations Act, R.S.O. 1990, c. B.16 (the "OBCA"), and asks that the court wind up the jointly owned family business, 264 Ontario, pursuant to section 207 of the OBCA.

[246] The applicant amended her Application in May of 2024 seeking relief on the basis that the respondent's conduct fell within the ambit of section 248. She sought a declaration that she was a "complainant" under the statute and was entitled to several remedies, including a winding up of the company.

[247] Section 248 of the statute permits a complainant to apply to the court for relief and gives the court broad remedial powers to address conduct by majority shareholders that is oppressive, unfairly prejudicial or that unfairly disregards the interests of a complainant.

[248] The respondent has not delivered a reply to the amended Application. No submissions were made by either party as to whether the respondent was deemed to have admitted the truth of the facts of the allegations in the Amended Application and in the result, I address the relief sought by the applicant on the merits.

[249] The oppression remedy is available to a complainant shareholder with equal shares in the company: see, Gojkovich v. Buhbli Organics Inc., 2023 ONSC 2738, 167 O.R. (3d) 117; Gandalman Investments Inc. v. Fogle, [1985], 52 O.R. (2d) 614, 22 D.L.R. (4th) 638, at para. 8. The definition of complainant is broadly construed. Protection is not limited to minority shareholders. Gandalman Investments stands for the proposition that a fifty percent shareholder can be a complainant for the purposes of the oppression remedy, so long as the shareholders are not in a deadlock situation. A deadlock is a situation "where power and authority are equally divided": Gandalman Investments Inc., at para. 7.

[250] In M. v. H., [1993], 15 O.R. (3d) 721, the parties were in a marriage-like relationship and had shared businesses. The complainant was a fifty percent shareholder but had no control over the affairs of the businesses. The court held that the defendant's dominance put the plaintiff in a vulnerable position, giving her access to the oppression remedy: M. v. H., at para. 27.

[251] In Waxman v. Waxman, [2002], 25 B.L.R. (3d) 1, at para. 1470, two brothers were respectively fifty percent shareholders of their corporation. Notwithstanding this fact, the court held that power and authority had not been divided equally between them. On that basis, the plaintiff, an equal shareholder, was not precluded from applying for an oppression remedy. The plaintiff's standing to claim an oppression remedy was not interfered with on appeal: Waxman v. Waxman (2004), 186 O.A.C. 201, 44 B.L.R. (3d) 165 at paras. 517-539, leave to appeal refused [2004] S.C.C.A. No. 291.

[252] I find that the applicant meets the definition of "complainant" under section 245 of the OBCA, because she owns fifty percent of the shares in the company. Under section 245(a) a complainant includes: "a registered holder or beneficial owner, and a former registered holder or beneficial owner, of a security of a corporation or any of its affiliates." On the evidence, the respondent had total control of the company and completely shut the applicant out of any decision making and access to information about the company.

[253] Section 248 of the OBCA creates an equitable remedy that "seeks to ensure fairness — what is 'just and equitable'": BCE Inc. v. 1976 Debentureholders, 2008 SCC 69, 3 S.C.R. 560, at para. 58. The Supreme Court of Canada has repeatedly stated that this equitable remedy gives "a court broad, equitable jurisdiction to enforce not just what is legal but what is fair": BCE, at para. 58; Wilson v. Alharayeri, 2017 SCC 39, 1 S.C.R. 1037 at para. 23.

[254] First, the complainant must "identify the expectations that he or she claims have been violated by the conduct at issue and establish that the expectations were reasonably held": BCE, at para. 70. Second, the complainant must show that these reasonable expectations were violated by corporate conduct that was oppressive or unfairly prejudicial to or that unfairly disregarded the interests of "any security holder, creditor, director or officer," pursuant to section 241(2): BCE, at para. 53.

[255] A complainant must meet the well-established two-pronged test established by the Supreme Court. The complainant must first identify the expectations they say have been violated by the conduct alleged and must show that the expectations were reasonably held (BCE, at para. 70). Next, the complainant must establish that the conduct is oppressive, unfairly prejudicial, or unfairly disregards their interests (BCE, at para. 72).

[256] The court has defined the terms "oppressive," "unfair prejudice" and "unfair disregard" in the following manner:

i. Oppression is conduct that is coercive or abusive. Oppression has also been described as conduct that is burdensome, harsh and wrongful, or an abuse of power which results in an impairment of confidence in the probity with which the company's affairs are being conducted: Hakim v. Toronto Standard Condominium 1737, 2012 ONSC 404, 1 B.L.R. (5th) 159, at para. 33.

ii. Unfair Prejudice has been found to mean a limitation on or injury to a complainant's rights or interests that is unfair or inequitable: Hakim, at para. 34.

iii. Unfair Disregard means to ignore or treat the interests of the complainant as being of no importance: Niedermeier v. York Condominium Corporation No. 50 [2006], 45 R.P.R. (4th) 182, at paras. 5-8.

[257] I find that the applicant's reasonable expectations were unfairly disregarded.

[258] The respondent does not dispute that 264 Ontario is a family business. The parities agreed that they created the company to purchase a building for an investment. Although the applicant suggests that she was to be on title and she has since learned that she is not, there is no evidence that either party was to be on title. The commercial property, 337 Bering Avenue, was purchased in 2018 by the numbered company.

[259] The respondent says that CFD Auto has been the only tenant since it was purchased. The respondent says that there was oppression because CFD Auto paid for all the expenses of the holding company, taxes, water, and utilities.

[260] The applicant testified that the respondent rented an auto body shop for several years. He discovered the 337 Bering property. To finance the purchase, they mortgaged their house, and she agreed to put a line of credit on the house.

[261] The applicant asserts that she was excluded from participating in the business and argues that the respondent has made decisions on behalf of the company to benefit himself and withheld financial and other critical information from her.

[262] The respondent does not deny that applicant has been excluded from the business. He says that the applicant did nothing for the business other than cosign on the mortgage.

[263] The court has held that the "oppression remedy section of the OBCA is drafted in the broadest possible terms to respond to the broadest range of corporate malfeasance." Maurice v. Alles, 2016 ONCA 287, 130 O.R. (3d) 452 at para. 52.

[264] The respondent is the president, secretary, and treasurer of 264 Ontario. Directors owe a fiduciary duty to act in the best interests of the corporation, and in considering the best interests of the corporation, directors may look at the interest of shareholders and employees, amongst others. BCE, at para. 36 and 40.

[265] Conduct found to be oppressive need not be unlawful because the oppression remedy "is focused on concepts of fairness and equity rather than on legal rights": BCE, at para. 71.

[266] In BCE, the Supreme Court enumerated several factors to consider in the context of whether it would be "just and equitable" to grant a remedy, the question is whether the expectation is reasonable having regard to the facts of the specific case, the relationships at issue, and the entire context, including the fact that there may be conflicting claims and expectations: BCE, at para. 62.

[267] Courts will give deference to the business judgment of directors because of the "business judgment rule" as long as it lies within a range of reasonable alternatives: BCE, at para. 40; Kerr v. Danier Leather Inc., 2007 SCC 44, 3 S.C.R. 331.

[268] The "business judgment rule" recognizes the autonomy and integrity of corporations, and the fact that directors an d officers are in a far better position to make decisions affecting their corporations than a court reviewing a matter after the fact: Maple Leaf Foods Inc. v. Schneider Corp., [1998], 42 O.R. (3d) 177, 113 O.A.C. 253; Kerr v. Danier Leather; UPM-Kymmene Corp. v. UPM-Kymmene Miramichi Inc., [2004], 250 D.L.R. (4th) 526, 183 O.A.C. 310 at para. 6; Brant Investments Ltd. v. KeepRite Inc., [1991], 3 O.R. (3d) 289, 80 D.L.R. (4th) 161.

[269] The respondent claimed that the mortgagee of the property's VTB mortgage on the property requested $100,000 to continue the VTB mortgage. He says he took it up on himself to borrow the money to bring the mortgage down. The applicant professed ignorance of the details of the loans. She claimed she only found out during the course of the litigation that only interest payments were being paid under the mortgage.

[270] There is no dispute that both parties made an investment. The initial purchase price was financed by a home equity line of credit and a VTB mortgage. The applicant paid the line of credit, and the respondent paid the mortgage.

[271] The applicant testified that in September 2021 shortly before the date of separation, when the mortgage was coming up for renewal, the respondent asked her to go with him to the bank. She says the amount that was being asked was very high and would put them in financial hardship. She knew nothing about what the respondent was making or provided information about CFD Auto. She says she told him she would think about it but heard nothing further from him.

[272] The applicant's uncontested evidence is that she only learned during the trial about the "refinancing", and only found out about the loan during the litigation. She was surprised to learn that the loan was interest only. I do not accept the respondent's evidence that he told the applicant that the VTB mortgage had been interest only. Had he provided her with a copy of the mortgage documents, which she was entitled to as an equal shareholder, she would have seen for herself that the mortgage was $950,000 with an annual interest rate of six percent, and that only interest payments would be made over the term of the three-year loan.

[273] The respondent says that there was no request to refinance the mortgage but rather a request to obtain a commercial loan. He testified that he had approached the applicant for a loan to pay down the mortgage, and she refused; he says he ended up borrowing $80,000 from "Filomena" and he himself put $17,000 towards the loan. The parties jointly filed a brief which included a photocopy of the front of a cheque from "Filomena" to CFD Auto. The document does not have the back of the cheque showing that it was cashed and where the cheque was deposited. The document was not proven at trial.

i) The applicant's reasonable expectation

[274] The respondent refused to provide any disclosure of the of 264 Ontario's affairs, including the financial information. Even after being ordered by the court in 2023 to make five years financial disclosure, he failed to comply with the court order, only providing limited disclosure shortly before the trial. Nakonechny J.'s disclosure order for financial documentation related to 264 Ontario company was made weeks before the trial.

[275] During his testimony, the respondent claimed he did not know what the company's debts were except the shareholders' loan. He repeatedly refused to answer numerous questions about the company's affairs. In M. v. H. (1993), 15 O.R. (3d) 721, the parties were in a marriage-like relationship and had shared businesses. The complainant was a 50% shareholder but had no control over the affairs of the businesses. The court held that the defendant's dominance put the plaintiff in a vulnerable position, giving her access to the oppression remedy: M. v. H., at para. 27.

[276] The applicant's uncontested and unchallenged evidence is that from the beginning, the respondent excluded her from all major decisions, refusing to even consult with her, and made all decisions related to the company unilaterally. The applicant only saw the agreement of purchase of the property after the respondent had signed it. She says she has had no other involvement aside from signing the line of credit when the property was purchased. She testified that she had asked the respondent to ensure her name was on the property and understood that they would both be on the property. She only learned that was not on the property after seeing the purchase agreement after the property was purchased.

[277] The applicant had a reasonable expectation that the respondent would consult with her about major decisions, despite his controlling role in operating the business, and that he would not make unilateral decisions, especially decisions which were about taking on debt and the financing of the business's major asset: 337 Bering Avenue.

[278] The respondent's evidence about an alleged loan from his mother to pay down the mortgage is confusing. CFD Auto's records $90,180.00 transferred to 264 Ontario, with $83,000 of that amount transferred on August 23, 2021.

[279] A reasonable expectation of the applicant, as an equal shareholder, would be that she would share in the earnings of 264 Ontario. In his closing submissions, the respondent says, without any evidence adduced at trial, that the applicant "has earned over $100,000 in the investment" and that his "hard work has earned the [a]pplicant a significant profit for her doing nothing." The applicant says that the July 2021 balance sheet shows that CFD Auto paid rent to the company in the amount of $60,631 as of July 2021, and she did not receive a share of that. She challenges whether CFD Auto was paying fair market rent to 264 Ontario.

[280] Neither side has provided any admissible evidence as to what the fair market rent would have been at any material time; nor has either party addressed the impact of 264 Ontario's Assignment of rent to the mortgagee.

[281] The respondent has, since the beginning, completely shut the applicant out of making any business decisions. At the trial, he insisted that he acted in the best interest of the company. He rejects any notation that the applicant has rights as shareholder. The applicant says that the respondent refused her to information needed to determine whether CFD Auto was paying fair market rent to 264 Ontario, and to determine the that debts were being paid and to assess the company's value. She says that the respondent that the rent charged to CFD Auto was "very low," and only the respondent has benefitted.

[282] The applicant says that the respondent has denied her information about the debts and assets of the company and prevented her from understanding the company's financial standing and her rightful share. The respondent does not challenge the applicant's evidence that he did not disclose information to her, but repeatedly testified that he made decisions as president, treasurer, and secretary, in the best interest of the company.

[283] The respondent does not contest the applicant's evidence regarding his absolute control of the company, excluding her from any participation, and the lack of any disclosure until weeks and days before the trial started. He repeatedly testified that as the officer and director, he acted in the best interest of the company.

[284] In fact, as an officer of the 264 Ontario, the respondent had certain fiduciary obligation to act in the best interest of 264 Ontario, but in doing so he is required to consider the interest of shareholders. The respondents repeated breaches amount to "a termination or repudiation of the business arrangements among the family members: Animal House Investments Inc. v. Lisgar Development Ltd., 2007 87 O.R. (3d) 529, 41 B.L.R. (4th) 231 (ONSC), at para. 52, aff'd , 2008 237 O.A.C. 261. On the evidence, the applicant's reasonable expectation as a shareholder has been breached since the inception of 264 Ontario and continued throughout the litigation until mere weeks before the trial when the applicant was afforded limited financial disclosure.

[285] The applicant had a reasonable expectation that the respondent would provide financial disclosure because of his fiduciary obligations and as required under the statute. The applicant says she has been locked out of the company and had received no information since the land was purchased in 2018. Her uncontested and unchallenged evidence that is that she saw information about the company for the first time during the litigation.

[286] The applicant's uncontested evidence is that the respondent obstructed her attempts to visit the property owned by 264 Ontario Inc., threatening her with charges of trespassing and blocking her efforts to obtain a valuation of the property. The respondent's evidence is that he blocked her access to his shed out of concern. The applicant had a reasonable expectation that she would not be physically excluded from the property. Her uncontested evidence is that when she asked the respondent for the keys to the property, he refused to provide them to her. Her unchallenged and uncontested evidence is that when she attempted to go onto the property, the respondent threatened that he would call the police if she set foot on property.

[287] I am satisfied that the applicant has identified reasonable expectations which were ignored or violated by the respondent.

[288] I am also satisfied that the actions taken by the respondents were oppressive and unfairly disregarded the interest of the applicant.

ii) What is the appropriate remedy in the circumstances?

[289] If the criteria for an oppression remedy are met, the court may grant a broad range of remedies under section 248(3) of the OBCA including winding up the corporation under section 207 of the Business Corporation Act: P.M.M. v. Y.W. M., 2019 ONSC 866, at para. 44.

[290] Section 207 of the OBCA sets out several circumstances where the court may make an order winding up a corporation. For instance, a corporation may be wound up if the court is satisfied that the business affairs of the corporation had been carried out or conducted in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of any director or officer or for some reason, other than the bankruptcy or insolvency of the corporation, that it should be wound up.

[291] The respondent argues that winding up the company is not in the best interest of the company. He says CFD Auto rents the property owned by 264 Ontario. CFD Auto, and the latter has two employees, one of whom was with him over ten years, and another was with him for seven years, previously contractors. The object of the oppression remedy is to protect shareholders. It focuses on the harm caused to the legal and equitable stakeholders by the oppressive acts of a corporation, its directors, or its officers: P.M.M. v. Y.W.M., at para. 47. Therefore, it is the interest of the applicant shareholder that requires protection. However, any order that the court makes must be appropriate for the situation and go no further than is necessary to redress the oppression.

[292] In cases where a corporation can continue to operate profitably, the court must consider if less restrictive alternatives are available. If the corporation remains viable, the appropriate solution is for the corporation to purchase the shares of one of the stakeholders at fair market value. Winding up is not always an appropriate remedy: P.M.M. v. Y.W.M., at para. 48.

[293] Because of the lack of valuation by the respondent and lack of disclosure of underlying documents, it is not clear to the court that 264 Ontario is a viable corporation. The financial statements show that every year the operating expenses are greater than the revenues; the company has had a deficit which has increased each year. The latest financial statements for the year 2023 show significant long-term debts including a mortgage of $850,000, shareholder loans of $538,000, and a long-term debt to CFD Auto of $90,180. The mortgage loans on the commercial property owned by the company have been interest payment only, with assignment of rents, its sole revenue, to the mortgagee.

[294] 264 Ontario's only asset is the commercial property 337 Bering Avenue. Its only revenue is the rental income from CFD Auto. CFD Auto has been the only tenant since the property was purchased. Documents filed by the parties, and agreed to as authentic, include an Assignment of Rent from 264 Ontario to Nifo Holdings Inc. While I give little weight to the document because the respondent was not cross examined on its contents, I note that the respondent has not provided any supporting underlying documents to show that CFD Auto paid rent to 264 Ontario. On the other hand, the respondent has provided an amended Assignment of Rent document between 264 Ontario and Nifo as well as cancelled cheques from a TD account showing rent payments made to Nifo.

[295] The least intrusive resolution for the continued operation of the corporation is to permit the corporation to make an offer to purchase the shares of the other party at fair market value: P.M.M. v. Y.W.M., at para. 50.

[296] The respondent says that the applicant should sell her shares at fair market value. I reject that argument. In P.M.M. v. Y.W.M, Chozik J. explained that in a family run corporation, the exclusion of the shareholder from running the business may render their shares worthless: at para. 48.

[297] 264 Ontario is a closely held company and the court cannot look to what the shares would be worth on the open market. The respondents have not provided any valuation of the fair market value of the shares.

[298] In his closing submissions, the respondent asserted that the applicant "has attempted to use the family court system to circumvent her obligations under the Corporations Act and has not taken the correct route by exercising her rights under the Corporations Act." The respondent argues that the applicant has the right, as a shareholder, to obtain her fair market value of the shares.

[299] I must reject the respondent's arguments. Not only is there no evidence before the court of the fair market value of the shares owned by the applicant, but there is also no evidence to indicate that 264 Ontario would be able to repurchase the applicant shares. The evidence before the court is that 264 Ontario has had a deficit since the beginning.

[300] There is no evidence before the court that even if the respondent's position prevailed, that 264 Ontario can purchase the applicant's shares. A buyout may not be a realistic or fair option where the oppressor cannot marshal the resources to purchase the shareholder's interest: Gojkovich, at paras. 99-104. The respondents have not provided any valuation for the shares.

[301] The parties filed a joint appraisal report of Oksana Vialykh and Dino Bottero, dated August 21, 2023, regarding a valuation of the land as of that date. The parties only agreed to the authenticity of the report. Neither party called the authors of the report to testify. It is not clear to the court that this information, on its own, would assist the court in determining the fair market value of the shares.

[302] The trial scheduling endorsement form signed by Nakonechny J. on May 6, 2024, stated that the respondent would be calling a "Matthew Tataj," regarding the calculation of taxes on the sale and transfer of 337 Bering Avenue, and Dino Bottero regarding the valuation of the property. The respondent did not call either witness.

[303] The respondent may have been able to avoid a winding up of the company if the parties could work together. I am not satisfied that they can do so. While a mere inability to work together, especially in the context of a family business, is not in and of itself sufficient to order a winding up: see P.M.M. v. Y.W.M., at para. 49, the respondent has controlled every aspect of the business and shut the applicant out of obtaining information for the six years that they have had the business.

[304] The respondent has even ignored court orders for financial disclosure. Their already acrimonious relationship has deteriorated even more since their separation. They have never managed the company together. There is no reasonable prospect that they would do so in the future. If shareholders are not able to work together, the company is likely to fail and liquidation or dissolution may be appropriate to avoid the inevitable deterioration in the value of the company: Wittlin v. Berman, [1995], 25 O.R. (3d) 761.

[305] In Stickney v. Stickney, 2024 ONSC 3581, 3 R.F.L. (9th) 134 Petersen J. stated that, in closely held corporations, it may be just and equitable to order a winding up where there is an irreparable mutual lack of confidence or trust between the parties: at para. 35. The parties mistrust each other. The animosity between them has been the subject of judicial comment. The lack of trust between the parties and inability to work together in the company supports a winding up order.

[306] The purpose of the oppression remedy is corrective: "…in seeking to redress inequities between private parties," the oppression remedy seeks to "apply a measure of corrective justice": Wilson, at para. 30. I am satisfied that this is an appropriate case for winding up the corporation.

[307] The court may order a winding up where it is just and equitable for some reason to do so: Redel v. Redel, [2000] 2000 CarswellOnt 694, at para. 25; Frieberg v. Frieberg, [1988] 63 O.R. (2d) 658, at para. 26. A breakdown in the relationship between the shareholders and conflict and the lack of trust may support that it is just and equitable to wind up a company: Frieberg at paras. 27-28; Redel, at para. 25.

[308] It may also be just and equitable to wind up a company if neither party has the money or assets to buy the other out: Redel; Frieberg. The applicant has not asked to buy the respondent's shares; there is no evidence that she has the assets or can raise funds to buy the respondent's shares; and, more importantly, the respondent has not provided any evidence to show what the shares are worth. There is also no evidence that 264 Ontario can purchase the applicant's shares.

[309] The applicant has asked for duplicate keys and sole responsibility in winding up the company. I have declined to grant such an order because of the animosity between the parties and the lack of co-operation by the respondent even in the face of a court order. Section 210 of the Business Corporations Act provides for the appointment of a liquidator, which is appropriate in this case.

F. Can the applicant maintain a claim for damages for "loss of opportunity" regarding the matrimonial house sale?

[310] The parties had jointly owned the matrimonial home. Brownstone J. granted an order dated March 31, 2023, on the consent of the parties, for the sale of the matrimonial home. She says that the respondent breached that order by delaying and obstructing the sale process, which resulted in the parties losing out on a favourable offer.

[311] The order of Brownstone J. provided that the parties would agree on a real estate agent, would co-operate, and follow the recommendation of the listing agent regarding, among other things, the listing price, and the sale price. The order also included the following, at paragraph 10:

The parties shall accept the first reasonable offer to purchase, taking into consideration the advice and recommendations of the real estate agent, considering the purchase price and other terms and conditions of the offer.

[312] The applicant contends that the respondent refused to sign the first offer. Shore J. granted the applicant carriage of the sale of the matrimonial home by order dated June 12, 2023. The applicant signed an offer less than two weeks later, on June 22, 2023, with a sale price of $1,320,000 with a closing date of July 25, 2023.

[313] The applicant amended her Application to claim damages for "for the lost opportunity" in the amount of $14,406, which she says represents her share of the net of real estate proceeds had the parties accepted an offer dated June 8, 2023, of $1,350,000 to sell the matrimonial home and the $1,320,000 which the home ultimately sold for.

[314] The respondent says that he received a verbal offer, and he asked that the offer be reduced to writing. He says that he received a "pre-emptive offer" in writing on June 8 th after 7:00 p.m., after the deadline had expired.

[315] I would dismiss the claim sought by the applicant for damages for "loss of opportunity." The applicant has not set out any claim or "cause of action" to ground the claim for damages. She has not provided any authority to show that the court may make free standing award for damages for loss of opportunity. Damages which flow from a loss of opportunity must flow from recognized claim, that is, cause of action.

[316] Even if the doctrine were available to her, I am not satisfied on the facts that she would be entitled to damages. What the applicant describes as "lost opportunity" may be described as a "loss of chance": see, Damages for Breach of Contract, 2nd Edition (Looseleaf), Ronald M. Snyder & Harvin D. Pitch, Carswell. Harvin D. Pitch and Ronald M. Snyder, Damages for Breach of Contract, 2nd ed. (Carswell), at § 4:1.

[317] I am not satisfied that loss of opportunity, or "loss of chance" or "loss of opportunity" is available to the applicant.

[318] The loss of chance doctrine contemplates that there is a breach of contract or tort breach. In Athey v. Leonati, [1996] 3 S.C.R. 458, at para. 38, the Supreme Court of Canada commented that the loss of chance doctrine is one "whereby the plaintiffs may be compensated where their only loss is the loss of a chance at a favourable opportunity or of a chance of avoiding a detrimental event." There are two parts to the loss of chance analysis: causation and quantum: Eastwalsh Homes Ltd. v. Anatal Developments Limited, [1993] 12 O.R. (3d) 675, 100 D.L.R. (4th) 469 at paras. 31-32.

[319] In Folland v. Reardon, [2005] 74 O.R. (3d) 688, the Court of Appeal acknowledged that the doctrine of lost chance was recognized in personal injury tort claims in fixing liability and in contract claims in assessing damages. In this case, there is no tort or breach of contract alleged.

[320] At paragraph 73 of Folland, the court set out four criteria that a plaintiff must establish to recover damages:

i. The plaintiff must prove on the balance of probabilities that but for the defendant's wrongful conduct, the plaintiff had a chance to obtain a benefit or avoid a loss.

ii. The plaintiff must establish that the chance lost was sufficiently real and significant to rise above mere speculation.

iii. The plaintiff must show that whether they would have avoided the loss or made the gain, depended on someone or something other than them.

iv. The plaintiff must show that the lost chance had some practical value.

[321] The applicant has also not addressed the issue of causation and the proper assessment of damages. Damages for loss of chance or loss of opportunity are assessed because of what would have taken place if there had been no breach. A party is entitled to compensation for the loss of that opportunity, but damages for that lost opportunity cannot be assessed as if it were a certainty: Houweling Nurseries Ltd. v. Fisons Western Corporation [1988], 37, 49 D.L.R. (4th) 205, B.C.L.R. (2d) 2 at para. 8; Ernst & Young v. Stuart, [1997] 144 D.L.R. (4th) 328, 31 B.C.L.R. (3d) 46 at para. 10.

[322] The court must assess the quantum of the benefit lost according to the probability of the plaintiff obtaining that chance: Trillium Motor World Ltd. v. General Motors of Canada Limited, 2015 ONSC 3824, 48 B.L.R. (5th) 142 at paras. 545-546; Eastwalsh, at para. 27. The court must determine what would have happened in hypothetical circumstances and value the probability that the first agreement of purchase and sale would have become binding with the first potential buyer, and the parties would have completed the sale.

[323] In my view, even if the applicant can establish that the doctrine applies, the facts are highly speculative. I am not satisfied that the applicant has proven that the first potential buyer would have purchased the matrimonial home but for the respondent's failure to sign the agreement. There is no evidence before the court that the potential buyer would have been able to secure the $80,000 deposit which was due upon acceptance of the offer.

[324] The applicant claimed she was prepared to consider the offer. But she herself did not sign the agreement of purchase and sale. I also do not have any admissible evidence to show that the potential buyer is the individual who DocuSigned his initial (or so it appears), at the signature line for the buyer. The signature is not witnessed.

[325] Dave Elfassy represented both parties in the sale. He could not recall the timelines or when he presented the agreement to the respondent. He testified that he recalls when the offer came in the respondent recommended a counteroffer of $1.4 million and the applicant wanted to proceed with the offer. There is no evidence before the court to show that Mr. Elfassy made a counteroffer.

[326] On the evidence, the applicant has not established on a balance of probabilities that but for the respondent's action, she would not have lost the opportunity to complete sell the matrimonial home to the first potential buyer.

[327] In addition, the real estate agent, Mr. Elfassy says that three further offers came in after the endorsement of Shore J. In my view, the applicant would be under a duty to mitigate. A party cannot recover losses that could have been avoided had it acted reasonably in reducing its losses: Asamera Oil Corp. v. Sea Oil & General Corp., [1979] 1 S.C.R. 633. The second offer was accepted by the applicant only fourteen days after the first. Mr. Elfassy offered an opinion that the price the house sold for "market value." This is opinion evidence which I am not prepared to accept. Mr. Elfassy was called as a fact witness. He prepared no report.

[328] I would therefore dismiss the applicant's claim for damages for loss of opportunity to sell the matrimonial home for $1,350,000.

G. Insurance

[329] The applicant seeks an order requiring the rrespondent to provide life insurance coverage for the children in accordance with the terms of the final consent order.

[330] The parties have advised the court that the question of insurance is resolved, and the respondent will provide life insurance as per the final consent order of Sharma J. in October 2023.

H. Should punitive and aggravated damages be awarded to the applicant?

[331] The respondent has not responded to the claim for punitive damages.

[332] I am denying the applicant's request because she has not established that the court has jurisdiction to make the order sought.

[333] Aggravated damages are compensatory in nature and are assessed as part of general damages: McIntyre v. Grigg, [2006] 83 O.R. (3d) 161, 274 D.L.R. (4th) 28 at para. 49; T.W. v. Seo, [2005] 199 O.A.C. 172, 256 D.L.R. (4th) 1 at para. 69. Aggravated damages compensate a party for "additional harm caused to the plaintiff's feelings by reprehensible or outrageous conduct on the part of the defendant": Whiten v. Pilot Insurance Co., 2002 SCC 18, 1 S.C.R. 595, at para. 116, and these damages are awarded where a party's reprehensible or outrageous conduct "causes a loss of dignity, humiliation, additional psychological injury, or harm to the plaintiff's feelings": McIntyre v. Grigg, at para. 50. Here, the applicant's claim for punitive and aggravated damages is based on what she says are the respondent's flagrant disregard of the court's orders and his consistent pattern of obstruction. She relies on the respondent's alleged failure to comply with a March 31, 2023, order regarding the sale of the matrimonial home, and the October 18, 2023, consent order.

[334] Punitive damages are not compensatory in nature. They are awarded to meet the objective of punishment, deterrence, and denunciation of the conduct of a party: Whiten, at paras. 43 and 68.

[335] I am not satisfied, on the evidence that even if punitive damages were available, that the respondent's conduct in breach various court orders would warrant an award of punitive damages. Punitive damages should only be awarded in exceptional cases: McIntyre, at para. 59 and with restraint: Whiten at para. 69; McIntyre, at para. 59. The Family Law Rules contain a mechanism and provisions for parties to deal with non-compliance of orders.

I. Should a divorce be granted?

[336] The parties have lived separate and apart since 2021. I am satisfied that there is no chance of reconciliation, and that the parties have established a legal basis for a divorce to be granted. But I do not have before me the Affidavit for Divorce (Form 36), marriage certificate, or marriage registration certificate and a Clearance Certificate.

IV. DISPOSITION

[337] For the reasons above, I make the following orders:

1) Paragraphs 1, 2, 4, 6, 7, 8, 9, 10, 11, 12, and the second sentence of paragraph 18, of the Final Consent Order of Sharma J. dated October 18, 2023, are set aside.

2) Paragraph 6 of the parties' Parenting Plan, annexed as Schedule A to the Final Consent Order of Sharma J. dated October 18, 2023, is varied to replace any and all references to "both parents" with "the applicant Diana Rea-Cina."

3) The applicant Diana Rea-Cina shall have sole decision-making responsibility of the children of the marriage, namely G.C. born [xxx], and N.C. born [xxx].

Section 7 expenses, extraordinary expenses, and joint account

4) The respondent shall reimburse the applicant $5,582.53 for his proportionate share of the section 7 expenses in accordance with paragraph 18 of the Final Consent Order of Sharma J., such amount, to be paid to the applicant within 30 days from the respondent's share of the net proceeds of sale of the matrimonial home held in trust.

5) The respondent shall pay the applicant $2,600 for his share of his contribution to the joint bank account for the period September 2024 to September 2025, in accordance with the Final Consent Order of Sharma J., such amount, to be paid to the applicant within 30 days from the respondent's share of the net proceeds of sale of the matrimonial home held in trust.

6) The respondent shall pay the applicant $317 for his share of N.'s confirmation outfit.

7) Within 30 days, both parties shall comply with paragraph 32 of the Final Consent Order of Sharma J. dated October 18, 2023.

8) The respondent shall pay the applicant an equalization payment of $56,011.23, out of the proceeds of the sale of the matrimonial home held in trust.

Oppression Remedy

9) It is declared that the applicant has been treated by the respondents in a manner that is oppressive, unfairly prejudicial to and which unfairly disregards her rights as a shareholder in 264771 Ontario Inc.

10) It is declared that it is just and equitable for reasons that 264771 Ontario Inc. be wound up for some reason other than the bankruptcy or insolvency of the corporation.

11) It is ordered that 264771 Ontario Inc. shall forthwith be wound up in accordance with the provisions of the Ontario Business Corporations Act.

12) It is ordered that the applicant shall, within 60 days, nominate a liquidator to wind up 264771 Ontario Inc.

13) Upon the appointment of the liquidator, all the powers of the directors shall cease.

14) The liquidator shall have the following power and authority, once appointed:

i. bring or defend any legal proceedings, civil or criminal, in the name and on behalf of the corporation;

ii. carry on the business of 264771 Ontario Inc. so far as may be required as beneficial for the winding up of the corporation;

iii. sell the property and/or assets of 264771 Ontario Inc.;

iv. do all acts and execute, in the name and on behalf of 264771 Ontario Inc.;

v. draw, accept, make and endorse any bill of exchange or promissory note on behalf of 264771 Ontario Inc.;

vi. demand delivery of property, documents, or records of 264771 Ontario Inc. from the respondent;

vii. demand the delivery of money, documents and records or effects held by Diana Rea-Cina, Daniele Cina, and any other directors, officers, employees, bankers and agents of 264771 Ontario Inc.;

viii. do and execute all such other things that is necessary for obtaining payment of any money due to 264771 Ontario Inc. and as is necessary for the winding up of the business and affairs of 264771 Ontario Inc.;

ix. the liquidator may seek the court's approval regarding the sale or disposition of property held by 264771 Ontario Inc. valuing more than $500,000;

x. upon the winding up of 264771 Ontario Inc., the liquidator shall apply the property of the corporation in satisfaction of all its debts, obligations and liabilities and, and ordinary creditors rank in priority to the rights and interests of the shareholders. The liquidator shall distribute the net property equally amongst the shareholders – Diana Rea-Cina and Daniele Cina;

xi. the liquidator shall report to the shareholders and may call a shareholder meeting as often as the liquidator deems reasonable; and

xii. the liquidator may apply to the court to be discharged in accordance with section 217 of the Ontario Business Corporations Act.

15) It is ordered that pending the appointment of the liquidator, the respondent shall have control of the business and assets of 264771 Ontario Inc. and shall carry on business acting in the best interest of the 264771 Ontario Inc. and in accordance with his obligations under the Ontario Business Corporations Act.

16) The costs, charges, expenses of the winding up, as well as the remuneration of the liquidator, are payable out of the property of the corporation in priority to all other claims.

Dismissed Claims

17) The applicant's claim for damages for loss of opportunity is dismissed.

18) The applicant's claim for aggravated and punitive damages is dismissed.

Divorce

19) The applicant may file the necessary documents with the counter staff in compliance with r. 36(5) of the Family Law Rules (i.e., Marriage Certificate and Divorce Certificate) and the necessary draft divorce order contemplated by r. 36(6) of the Family Law Rules, for an uncontested divorce. Service on the respondent is dispensed with.

V. COSTS

[338] I encourage the parties to resolve the issue of cost as between themselves. If they are unable to do so, I will receive costs submissions, forwarded to the Trial Co-Ordinator, limited to 5 pages, double spaced, 12-point font, and a Bill of Costs, and supporting dockets or computer-generated time docketed, based on the following schedule:

i. The applicant shall deliver Costs submissions and a Bill of Costs, no later than 45 days from the date of these Reasons.

ii. The respondent shall deliver his responding submissions, and any supporting materials mentioned above, 45 days thereafter.

iii. Any Reply submissions, if necessary, shall be delivered no later than ten days thereafter.

A.P. Ramsay, J

Released: 12 September 2025

APPENDIX A

Section 7(1.1) of the Federal Child Support Guidelines, SOR/97-176, defines "extraordinary expenses" as follows:

(1.1) For the purposes of paragraphs (1)(d) and (f), the term extraordinary expenses means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse's income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.