Court File and Parties
Court File No.: CV-24-00096062-00 Date: 2026-03-16 Superior Court of Justice
B E T W E E N:
SHAWN DENTON NEWELL Plaintiff
- and -
IVAN FRISKEN et al. Defendant
REASONS FOR DECISION
BEFORE THE HONOURABLE JUSTICE P.E. ROGER
on March 11, 2026 at OTTAWA, Ontario
APPEARANCES:
S. Newell, Self-Represented I. Frisken, Self-Represented A. Paterson, Counsel for M. Cardinal and Cardinal Law Professional Corporation W. Greensoon, Counsel for First National Financial GP Corporation S. Williams, Counsel for The Canadian Air Transport Security Authority
TABLE OF CONTENTS
REASONS FOR DECISION PAGE 1
Transcript Ordered: March 13th, 2026 Transcript Completed: March ___, 2026 Ordering Party Notified: March ___, 2026
WEDNESDAY, MARCH 11, 2026:
REASONS FOR DECISION
ROGER, J. (orally):
[1] The plaintiff brings a motion for summary judgment seeking to set aside the separation agreement of October 11, 2021, and the subsequent Corollary Relief Order of the Supreme Court of Nova Scotia, dated November 16, 2023.
[2] He argues lack of financial disclosure, lack of independent legal advice, and duress and/or misrepresentation.
[3] The plaintiff argues further that the separation agreement is of no force or effect because it was breached by the deceased, Iain Frisken, and further unenforceable due to his breaches.
[4] As well, the plaintiff argues that the Nova Scotia order is void or invalid because a divorce was actually never obtained because the plaintiff died within the 31-day period.
[5] The defendant, Ivan Frisken, brings a motion for summary judgment as well arguing that there is no genuine issue requiring a trial against him, alternatively he seeks security for costs.
[6] The defendants Milena Cardinal and Cardinal Law Professional Corporation argue that the Ontario Superior Court has no jurisdiction and/or alternatively that the plaintiff's motion should be dismissed on the basis that he has failed to bring forth evidence supporting such relief.
[7] I have come to the conclusion that the Ontario Superior Court has no jurisdiction to set aside the separation agreement or Corollary Relief Order of the Supreme Court of Nova Scotia.
[8] When the plaintiff retained a lawyer in Nova Scotia and obtained a Corollary Relief Order from the Supreme Court of Nova Scotia, this converted the separation agreement into an order of that court.
[9] As a result, the Supreme Court of Nova Scotia Corollary Order now supersedes the separation agreement.
[10] Consequently, to contest or to challenge the validity of the separation agreement, the plaintiff must now challenge the validity of the Corollary Relief Order of the Supreme Court of Nova Scotia. This can only be done before the Supreme Court of Nova Scotia.
[11] The Divorce Act does not assist the plaintiff regarding jurisdiction nor does the decision of this court in Bayrekdar v. Al Zaher, 2025 ONSC 2713. That decision related to an Ontario order and does not in any way resolve the jurisdiction issue.
[12] No case was brought to my attention to contradict that jurisdiction is with the Nova Scotia court.
[13] Various cases cited by the defendant Cardinals are clear on that point, see for example the decision of my colleague in Joudrey v. Joudrey, 2023 ONSC 1398.
[14] The above is sufficient to dismiss the plaintiff's motion.
[15] By way of obiter, or as an aside, I add briefly that most of the plaintiff's material rely on allegations and bold statements rather than on facts and seem to forget that this is a motion for summary judgment, with its specific test, not a trial.
[16] I note further that some of the evidence relied upon, for example the report of the psychologist is not admissible for the truth of its content, as not supported by an affidavit.
[17] Further, I note that what might be problematic for the plaintiff in Nova Scotia is that he, with the help of a lawyer, obtained the Nova Scotia order incorporating the separation agreement into the Corollary Order of November 16, 2023.
[18] The plaintiff had a lawyer available to advise him and still chose to enforce the separation agreement by way of the Corollary Relief Order.
[19] With regards to the defendant, Ivan Frisken, there is an adequate record for the court to decide that this defendant has established that there is no genuine issue requiring a trial vis-a-vis the allegations against him.
[20] The onus is on the defendant who has established that the court can make the necessary findings of fact and apply the law to the facts to arrive at a just result that is proportionate, more expeditious, and less expensive.
[21] Indeed, even assuming that the order and separation agreement will be set aside by the Nova Scotia Supreme Court, and I make that assumption only for the purposes of deciding these issues, Ivan has established that he is not a proper party.
[22] Ivan is not the estate trustee and any limited action on his part as an estate trustee caused no damages to the plaintiff.
[23] Ivan has established that there are no genuine issue requiring a trial, that the pension and life insurance issues have been settled and not impacted by his actions.
[24] Looking at the various allegations and claims, Ivan is not the estate trustee and relief seeking to remove him as an estate trustee is obviously not required.
[25] Although Ivan temporarily acted as an estate trustee, he did not take possession of and control of the estate property.
[26] The few minor steps that he took are not sufficient and, in any event, he did not breach any fiduciary duties.
[27] The defendant has established that he caused no breach or loss and the plaintiff has not established any genuine issue to the contrary.
[28] Similarly, Ivan established that he was not negligent and not the recipient of any unjust enrichment.
[29] No genuine issue for trial has been raised about these issues. Again, allegations and bold statements are not evidence.
[30] The same is applicable to the allegations of fraudulent misrepresentation, and to those of punitive and/or exemplary damages. All have been disproved by the defendant, Ivan, with no evidence of a genuine issue requiring a trial about those raised by the plaintiff.
[31] Although not required, I note that if I had not made the above finding, I would have made an order for security for cost. The evidence is sufficient to warrant such an order.
[32] Consequently:
The plaintiff's motion for summary judgment is dismissed. Jurisdiction to set aside the order incorporating the separation agreement is with the Supreme Court of Nova Scotia.
The motion for summary judgment of the defendant, Ivan Frisken, is granted and the action as against that defendant is dismissed.
Costs. The defendants were the successful parties on this motion and I see no reason why costs should not follow the result.
[33] On the scale of costs, despite the allegations involving fraud and despite the very small offer that was made early on in the proceeding, I exercise my discretion to order costs on a partial indemnity basis considering how this action came about and more so considering the financial circumstances of the plaintiff.
[34] I realize of course that the defendant Frisken incurred significant costs to defend this action, however I find that overall what is fair is to order costs on a partial indemnity basis.
[35] On the issue of the quantum or amount of costs, the amount sought by the defendants Cardinal is reasonable and proportionate to the complexity of this matter.
[36] Regarding the amount sought by the defendant Frisken, I find that they are slightly higher than what would be expected in such a case.
[37] Amounts for actual costs in the range of about $60,000 would be more in line with what could be reasonably expected by a losing party and more proportionate to the complexity of these issues and reasonable.
[38] Reducing that amount to 60 percent to reflect partial indemnity costs and adding to that amount HST and disbursements, the following is ordered with respect to costs:
The plaintiff shall pay costs to the defendant's Cardinal in the all-inclusive amount of $11,000.
The plaintiff shall pay costs of this action and motion to the defendant Frisken in the all-inclusive amount of $40,000.
...WHEREUPON THESE PROCEEDINGS WERE CONCLUDED