Court File and Parties
Court File No.: FC111/19 Date: 2026-03-19 Superior Court of Justice – Ontario
Re: Jan Albert Moes, Applicant And: Carol Marian Van Rooy, Respondent
Before: T. Price J.
Counsel: Sandra Feder - Counsel for the Applicant Respondent unrepresented
Heard: January 23, 2026; February 13, 2026
Endorsement
Background
[1] The Applicant (Mr. Moes) and the Respondent (Ms. Van Rooy) separated on June 7, 2018. They signed a separation agreement on September 25, 2018. Legal counsel represented Ms. Van Rooy. Mr. Moes was self-represented.
[2] On June 10, 2019, Mr. Moes commenced an application in which he sought to set aside the separation agreement, a divorce, and other relief.
[3] Ms. Van Rooy defended the application while making claims of her own in her Answer and Claim by Respondent. Amongst her claims was a request that Mr. Moes' application be dismissed. She also sought relief in the alternative if the court were to set aside the separation agreement.
[4] Counsel represented both parties when the pleadings were filed.
[5] On August 18, 2022, Mr. Moes filed a Notice of Withdrawal. He withdrew all claims made against Ms. Van Rooy. Because he did not have her consent to do so, the issue of costs remained to be determined.
[6] Also remaining to be determined were Ms. Van Rooy's claims against Mr. Moes.
[7] On September 8, 2022, Mr. Moes made an assignment in bankruptcy. His Trustee in Bankruptcy was and remains Farber and Company (hereinafter, "the Trustee").
[8] Because she was determined to proceed with her claims against Mr. Moes, on April 5, 2023 Ms. Van Rooy obtained an order from the Deputy Registrar of the Bankruptcy Court at London which lifted the stay of her claims against Mr. Moes that was imposed at the time of his bankruptcy as a result of s. 69.3(1) of the Bankruptcy and Insolvency Act, R. S. C. 1986, c. B-3 (hereinafter, BIA).
[9] The order, made under s. 69.4 of the BIA, specifically provided that the stay was lifted "for the purpose of establishing the amount of [sic] which the creditor is entitled to prove in the bankruptcy of Jan Moes as an unsecured claim."
[10] That was the primary purpose of this proceeding.
[11] The order of the Deputy Registrar further provided that no enforcement of the order could occur without further order of the Superior Court in Bankruptcy and Insolvency.
[12] Using this order, Ms. Van Rooy succeeded thereafter in obtaining sole title to the parties' jointly owned matrimonial home when the Trustee released its claim on Mr. Moes' interest in it.
[13] In furtherance of her efforts to obtain costs of defending the withdrawn application, Ms. Van Rooy sought to have them quantified. On February 5, 2024, I made an order that Mr. Moes pay costs in the amount of $10,000 to Ms. Van Rooy.
[14] With that order, Ms. Van Rooy's claims against Mr. Moes were effectively completed.
[15] After she obtained the order for costs, Ms. Van Rooy filed a claim as an unsecured creditor of Mr. Moes for the $10,000.00. It was the only claim which she filed with the Trustee.
[16] Ms. Van Rooy's filing of the claim with respect to the costs award came about as a result of what she perceived to have been ambiguous information provided by an employee of Farber and Company when she asked that employee whether the costs award was to be treated as a debt owed by Mr. Moes at the date of his bankruptcy, thus to be pursued within the bankruptcy proceeding, or an after-acquired debt for which Mr. Moes was to be personally responsible apart from the bankruptcy proceeding.
[17] While the responses she received were ambiguous, on February 5, 2024, Ms. Van Rooy also received an email from an entity known as PB Assets (whose role in Mr. Moes' bankruptcy was not explained to me) by which she was informed that it was in receipt of the costs endorsement. The person contacting her on behalf of PB Assets suggested that she file a proof of claim with the Trustee for the costs.
[18] One of the issues before me was whether all, part, or none of the costs against Mr. Moes fall within the bankruptcy proceeding.
Further Claims by Ms. Van Rooy
[19] Feeling aggrieved by Mr. Moes' bankruptcy because it effectively left her solely responsible for certain joint debts addressed in their separation agreement, Ms. Van Rooy was determined to seek further orders against Mr. Moes, preferably outside of the bankruptcy proceeding.
[20] On September 13, 2024, Justice Korpan granted leave to Ms. Van Rooy to amend her Answer and Claim by Respondent to include those new claims. Her Amended Answer was dated November 1, 2024.
[21] In her Amended Answer, Ms. Van Rooy added a number of new claims. Those that were addressed in this proceeding consisted of claims for:
a. an order that the proceeds of sale of certain stocks owned jointly by the parties at the time of Mr. Moes' bankruptcy be applied to the outstanding balance of $4,868.98 owed by the parties on a joint credit card at the date of separation;
b. payment to Ms. Van Rooy of an amount equal to the total of all increased monthly interest and mortgage insurance payments that she had been required to make to RBC because of Mr. Moes' refusal to agree, in December 2020, to execute an agreement extending the mortgage on the parties' matrimonial home for a further period of five years. This had resulted in the mortgage changing from one having a five-year fixed interest rate to one having a variable interest rate which changed every six months, for a period of five years, at which time Ms. Van Rooy, having obtained sole title to the matrimonial home, was able to negotiate a new, fixed rate mortgage;
c. payment to Ms. Van Rooy of $20,000.00, being the full unpaid balance owing on one of the parties' RBC joint lines of credit [hereinafter, the Primary Line of Credit] on the date of Mr. Moes' bankruptcy, together with an amount representing the total of all interest and monthly insurance premiums which Ms. Van Rooy had paid to RBC following Mr. Moes' bankruptcy; and
d. payment of $5,000.00, being the unpaid balance owing on another of the parties' RBC joint lines of credit [hereinafter, the Secondary Line of Credit] on the date of Mr. Moes' bankruptcy, together with an amount representing the total of all interest and monthly insurance premiums which Ms. Van Rooy had paid to RBC following Mr. Moes' bankruptcy.
[22] Mr. Moes was served with the Amended Answer. He retained counsel to defend against the new claims.
[23] In the meantime, on October 23, 2024, Deputy Registrar Stevens, sitting in the Superior Court of Justice, in Bankruptcy, made an order conditionally discharging Mr. Moes from his bankruptcy.
[24] The condition of his discharge was that he must pay the Trustee "a total that will result in dividends to creditors of 50% of proven unsecured debt after payment of administrative fees and disbursements (excluding levy)."
[25] At the time of this proceeding, Mr. Moes had not complied with the condition and remained an undischarged bankrupt.
The Parties' Separation Agreement
[26] The parties pointed to several clauses in their separation agreement to support their positions – Ms. Van Rooy's being that they created Mr. Moes' liability to her, which she claimed continued after his bankruptcy, and Mr. Moes' being that they did not. He also pointed to some other clauses to support his position.
Quantifying Ms. Van Rooy's Claims
Proceeds of Sale of the Stocks
[27] These stocks were addressed in Paragraph 7.2 of the parties' separation agreement, which provided as follows:
7.2 The parties have jointly owned stocks with Computershare and AST. Within 60 days of the signing of this Agreement, the parties shall sell their stocks. Any funds received from the sale of the stocks shall be applied to joint Tangerine credit card balance. If any further funds remain, they will be applied to the outstanding balance of the parties' joint line of credit held at the Royal Bank of Canada.
[28] Ms. Van Rooy acknowledged that she and Mr. Moes jointly owned these stocks.
[29] She testified that she continued to hold the stocks following Mr. Moes' bankruptcy. She had some discussions with the Trustee about their sale. She finally sold them because she was uncertain about their status in the bankruptcy. She has continued to hold the $1,740.59 proceeds of sale in a separate account.
[30] Murray Sholdice, a representative of Farber and Company, testified that an agreement had been reached between the Trustee and Ms. Van Rooy that 50% of the sale proceeds would be paid to the Trustee for the benefit of creditors. Ms. Van Rooy confirmed the existence of the agreement. However, at the time of the hearing, she had not sent the Trustee its 50% share of the sale proceeds.
[31] Despite the terms of their separation agreement, Ms. Van Rooy must pay Mr. Moes' half of the proceeds of sale ($870.29) to his Trustee for the benefit of his creditors.
Increased Payments for Mortgage Interest and Mortgage Insurance
[32] The parties' mortgage was addressed in Paragraphs 8.3 of their separation agreement, as follows:
8.3 While the matrimonial home remains in joint ownership, the parties will execute or guarantee
(a) any mortgage renewal, or
(b) any mortgage replacement, provided that the principal amount secured does not exceed half the fair market value of the home.
[33] Ms. Van Rooy's evidence was that, in October 2020, she and Mr. Moes were offered a pre-approved mortgage renewal rate of 2.07%, with weekly payments of principal, interest and mortgage insurance of $153.18. Mr. Moes's refusal to sign the mortgage extension agreement forced Ms. Van Rooy into an open mortgage in December 2020 at 7.45%, which progressively increased to, ultimately, 9.85% in August 2025.
[34] The date from which Ms. Van Rooy has calculated her claim is December 25, 2020, which was after the date that a renewed mortgage at a lower rate would have expired.
[35] While the date of Mr. Moes' initial refusal to sign the renewal is not in evidence, it clearly had to have occurred before December 2020 because RBC could not renew the mortgage without his consent.
[36] The evidence produced by Ms. Van Rooy establishes that, between December 25, 2020 and December 20, 2024, the interest rates on the mortgage as it has been renewed by RBC were 7.45%, 8.25%, 9.15%, 9.25%, and 9.85%.
[37] It appears that there may have been a further increase in January 2025, but Ms. Van Rooy produced no evidence to support her calculations.
[38] The increased payments made by Ms. Van Rooy over the period from December 25, 2020 to December 20, 2024 amounted to $20,788.50.
[39] Adding the increased amount that she was paying immediately prior to December 21, 2024, and not further increasing it because of a lack of evidence to support the further increased amounts claimed, the increased costs paid by Ms. Van Rooy between December 21, 2024 and July 31, 2025 would have amounted to $3,912.96, rather than the $4,004.22 claimed by Ms. Van Rooy.
[40] Therefore, the evidence establishes that, between December 25, 2020 and July 31, 2025, Ms. Van Rooy paid increased costs for mortgage interest and mortgage insurance amounted to $24,701.46.
Primary Line of Credit and Debt Insurance
[41] The parties' separation agreement addressed this debt in Paragraphs 10.1, 10.4 and 10.5, which provided as follows:
10.1 John[^1] and Carol have the following debts in their joint names:
a. Royal Bank line of credit in the approximate amount of $20,000.
John will be responsible for one-half of the total amount owing on the line of credit and Carol will be responsible for one-half of the total amount owing on the line of credit.
If John or Carol becomes liable for a debt the other has assumed, the party who has assumed the debt will fully indemnify the other.
10.4 A party who is under an obligation in this Agreement to reimburse or indemnify the other will:
(a) pay the other's expenses, damages, or loss, including costs arising from the party's obligation to reimburse or indemnify, and
(b) indemnify the other from:
(i) any amounts paid by him or her with respect to the liability, plus interest on the amount at 3% a year compounded annually, and
(ii) actual legal fees and disbursements incurred by him or her.
10.5 In this Agreement, one party's indemnification of the other with respect to a debt will be enforceable as a consent to judgment in favour of the party owed the indemnity and against the party owing it in the amount of the liability, plus the costs incurred to obtain the judgment and enforce it."
[42] Mr. Moes stopped making payments on the line of credit in 2018, before he brought the application to set aside the separation agreement.
[43] Ms. Van Rooy made no claim in her original Answer for reimbursement of his unpaid share of the line of credit. She did, however, include a claim in her amended answer.
[44] At the time of the bankruptcy, the parties' joint line of credit amounted to $20,926.68.
[45] Mr. Moes listed RBC as an unsecured creditor for that amount when he filed his assignment in bankruptcy. The Trustee accepted his quantification.
[46] Over the years, according to Ms. Van Rooy, she paid interest and insurance premiums in the amounts of $12,110.04 and $4,966.93, for a total of $17,076.97.
[47] In August 2025, when she was able to renew the mortgage in her own name, Ms. Van Rooy also paid the unvaried outstanding principal on the Primary Line of Credit in the amount of $20,926.68.
[48] Ms. Van Rooy's claim is that Mr. Moes should be indebted to her for one half of the full outstanding principle balance that she paid ($20,926.68/2 = $10,463.34) plus the full amount of the interest and insurance costs that she paid ($17,067.97), for a total of $27,531.31.
[49] In doing so, she pointed to and relied upon Paragraphs 10.4 and 10.5 of the separation agreement to support her claim.
Secondary Line of Credit and Debt Insurance
[50] Because this debt arose after the parties had signed their separation agreement, it was not a factor in this claim by Ms. Van Rooy.
[51] However, "[i]n law, each is liable to the creditor for the full amount of a joint debt but as between the joint debtors themselves each is liable for half in the absence of an agreement to the contrary. One paying more than half can seek contribution and indemnity from the other debtor." (Clark v. Clark, [2006] O.J. No. 4113 (S.C.J.))
[52] When he made his assignment in bankruptcy, Mr. Moes listed RBC as an unsecured creditor for the Secondary Line of Credit in the amount of $4,800.00.
[53] However, it seems that Mr. Moes did make some payments to reduce the principal balance before he filed for bankruptcy.
[54] Following Mr. Moes' bankruptcy, Ms. Van Rooy made payments of interest ($996.41) and insurance ($505.24) and retired the total remaining balance of the Secondary Line of Credit in the amount of $4,663.28, for a total paid of $6,164.93. That is the amount that she seeks.
Are Any Amounts Claimed by Ms. Van Rooy Payable as Spousal Support?
[55] Hovering over this entire proceeding was an assertion by Ms. Van Rooy that any amounts that she may be owed by Mr. Moes should be characterized as spousal support, be payable in full apart from his bankruptcy, and survive his discharge from bankruptcy, whenever that might be finalized.
[56] Her rationale is that, because Mr. Moes has had an obligation to comply with the separation agreement and failed to do so, particularly when he refused to sign the mortgage renewal, she was financially disadvantaged and her lifestyle suffered. Consequently, she submits, any amount that Mr. Moes owes her for not complying with the terms of the separation agreement should be treated as spousal support.
[57] I described Ms. Van Rooy's position on this issue as an "assertion," rather than a claim, for the following reasons:
a. in her initial Claim by Respondent, Ms. Van Rooy did not seek spousal support in the event that the court were to set aside the parties' separation agreement;
b. in her Amended Claim by Respondent, filed after Mr. Moes had withdrawn his claim to set aside the separation agreement and was in bankruptcy, Ms. Van Rooy, again, neither claimed spousal support nor did she claim that any amounts that she was seeking from Mr. Moes under the terms of the separation agreement should be characterized as support; and
c. Ms. Van Rooy testified that she only formed the intention of claiming that the amounts owed to her by Mr. Moes should be characterized as support only after she had read some cases on the topic during the course of this litigation.
[58] There are a couple of clauses in the separation agreement which touched on the issue of spousal support. They are:
Paragraph 6, which provided:
As a result of the terms of this Agreement, John and Carol are financially independent of each other and release his or her rights to spousal support from the other forever. John and Carol intend this agreement to be forever and final and non-variable.
This Agreement has been negotiated in unimpeachable fashion and fully represents the intentions and expectations of the parties. Both parties have had independent legal advice and all the disclosure they have asked for and need in order to understand the nature and consequences of this Agreement and to come to the conclusion, as they do, that the terms of this Agreement, including the release of all spousal support rights, constitutes an equitable sharing of both the economic consequences of their relationship and its breakdown.
The terms of this Agreement substantially comply with the overall objectives of the Divorce Act now and in the future and the parties' need to exercise their autonomous rights to achieve certainty and finality.
The terms of this Agreement, and in particular this release of spousal support, reflects their own particular objectives and concerns. Among other considerations, they are also depending upon the spousal support release, in particular upon which to base their future lives.
John and Carol do not want the courts to undermine their autonomy as reflected in the terms of this Agreement, which they intend to be a final and certain settling of all issues between them. They wish to be allowed to get on with their separate and independent lives, no matter what changes may occur. John and Carol specifically anticipate that one or both of them may lose their jobs, become ill and be unable to work, have additional childcare responsibilities that will interfere with their work, find their financial resources diminished or exhausted whether through their own fault or not, or be affected by general economic and family conditions changing over time. Changes in their circumstances may be catastrophic, unanticipated or beyond imagining. Nevertheless, no change, no matter how extreme, will alter this agreement and their view that the terms of this Agreement reflect their intention to always be separate financially. John and Carol fully accept that no change whatsoever in their circumstances will entitle either of them to spousal support from the other.
and
Paragraph 7.6, which provided:
The spousal support and property sections of this agreement are interdependent and inextricably intertwined. Together, they fully satisfy the support objectives set out in the Divorce Act and the Family Law Act.
[59] Both parties relied on the decision in Moore v. Moore, 1988 CanLII 4570 (ON SC), [1988] O.J. No. 2024. In that case, the court identified the issue in that case, an appeal from a ruling by a Deputy Registrar, in the following words:
1 The issue in this appeal is how to determine whether a husband's liability under a separation agreement, to indemnify his wife in respect of a joint debt to a bank, survives bankruptcy as a liability under an agreement of maintenance and support within the meaning of the Bankruptcy Act, R.S.C. 1985, c. B-3, s. 178(1)(c).
[60] The creditor wife had sought "a declaration that an obligation of her husband under their separation agreement would not be released by her husband's discharge from bankruptcy."
[61] The Deputy Registrar had "held the husband's liability under the indemnity clause was a debt or liability under an agreement of maintenance and support within the meaning of s. 178(1)(c)." As a result, the Deputy Registrar had further held that "the wife's action for indemnification under the separation agreement was not stayed by reason of s. 69(1) of the Bankruptcy Act and that the debt or liability under the indemnification clause in the separation agreement would not be released by any order of discharge."
[62] Justice Campbell remitted the matter to the Deputy Registrar for further consideration. In doing so, he wrote:
24 There was no finding of fact about the nature of the liability under the agreement.
25 If the deputy registrar, following [Lawpla Ltd. v. Bonney (1984), 1984 CanLII 4829 (ON SC), 40 R.F.L. (2d) 105] purported to hold that every liability, regardless of its nature, under a separation agreement that deals with support, debt, and property, is a liability under an agreement for maintenance and support under s. 178(1)(c), then I respectfully disagree.
26 The fact that an agreement for debt repayment is put in the same document as an agreement for maintenance and support does not mean that the agreement for debt repayment is in fact an agreement for maintenance and support.
27 There may be cases where it is factually difficult to classify the particular debt or liability. There may be cases such as Lawpla where the debt or liability can in all the circumstances be found as a fact to represent support and maintenance.
28 It must be a question of fact in each case whether the debt or liability arises under an agreement for maintenance and support. The nature of the liability, the words of the agreement, and the circumstances surrounding the negotiation of the agreement may all be looked to in order to make a finding of fact about the nature of the debt or liability.
29 The task in these cases is to determine as a question of fact whether the money owing under the agreement is really in the circumstances a form of maintenance and support, or is basically intended as maintenance and support, or is in effect maintenance and support or a substitute for it.
30 A recent example of such factual analysis is Craig v. Bassett (1988), 1988 CanLII 8732 (NS SC), 15 R.F.L. (3d) 461 (N.S.S.C.), where evidence was heard and the circumstances were examined to determine whether the words used in the agreement were, in the context and on the facts, intended to create a liability for maintenance and support in the sense that they were basically intended for maintenance and support.
31 Cases like this cannot be decided on the basis that the debt or liability comes automatically within s. 178(1)(c) of the Bankruptcy Act just because it flows from a separation agreement that deals with both property and support.
Conclusion
32 It is only upon a finding of fact of the sort made in Craig v. Bassett, supra, that the relief sought can be granted. There is no such finding of fact in this case.
[63] The decision in Moore v. Moore was distinguished by the British Columbia Court of Appeal in Van Norman v. Van Norman, 1993 CanLII 2474 (BC CA), [1993] B.C.J. No. 244 at paragraphs 55 and 56, on the basis that, in Moore, "the nature of the debt was clearly characterized as a property settlement and not maintenance or support, and in each there was a clear and unconditional release given by the wife of any claim for maintenance."
[64] Ms. Van Rooy also relied on the decision in Lawpla Ltd. v. Bonney. In that case, the language considered by the court was different from that which exists today. At that time, s. 148(1)(c) of the Bankruptcy Act provided that:
148.(1) An order of discharge does not release the bankrupt from
(c) any debt or liability… under an agreement for maintenance and support of a spouse or child living apart from the bankrupt...
[65] In holding that the bankrupt husband was not released from an indemnity of his wife for the payment of a mortgage which for which she ended up being responsible on his bankruptcy, Judge Fanjoy focused on the words "any debt" and held that so long as the "debt" arose under "an agreement for maintenance and support,", it survived the bankruptcy. It was on this basis that Justice Campbell disagreed with Judge Fanjoy's conclusion, both having regard to the changed wording of the statute, and his holding that each case must be examined on its own facts.
[66] Ms. Van Rooy also relied on the decision in Cousin v. Cousin, [2020] A.J. No. 1264, in which the Court held that the failure of a bankrupt husband to comply with the terms of a separation agreement meant that the amounts that the court determined he owed his wife under the agreement constituted spousal support.
[67] The Alberta Court of Appeal, in distinguishing Cousin in the later case of Zibell v. Zibell, [2024] A.J. No. 439, at paragraph 23, held that a key feature underlying the decision in Cousin was the fact that the separation agreement in that case contained a clause which read as follows:
As a result of the terms of this Agreement, and upon completion of the property settlement set out in this Agreement Danielle and Bryan are financially independent of each other and release his or her rights to spousal support from the other, now and forever. [Emphasis added]
[68] The Court of Appeal explained that, in Cousin, the "completion of the property settlement" was a condition precedent to the releasing of a claim for spousal support. Since the property settlement was not completed, a support claim could still be made.
[69] Mr. Moes relied on the decision of the Nova Scotia Court of Appeal in Bassett v. Craig, 1988 CanLII 8712 (NS CA), [1988] N.S.J. No. 374. In that case, the holding of the Judge of first instance that monthly payments to be made by a bankrupt husband to his wife for her share of a partnership, on which she relied as income, constituted payments in the nature of support and survived his bankruptcy, was affirmed by the Court of Appeal. In upholding the decision, the Court of Appeal wrote, at paragraph 20, "Based upon the evidence before him, it is my opinion, after examining that evidence, that the chambers judge did not err in his determination of the issue."
[70] In other words, the facts of that case, and the wording of the agreement, led the court to decide as it did.
[71] As the party alleging that she is entitled to support as a result of Mr. Moes' failure to comply with his obligations under the separation agreement, Ms. Van Rooy bears the onus of satisfying the court, on a balance of probabilities, that the agreement in this case clearly establishes the continued existence of a right to claim support upon proof of Mr. Moes' failure to comply with the terms of the agreement.
[72] She provided no evidence about the underlying negations leading to the agreement.
[73] Her failure to claim any support, either at the outset or, more importantly, after Mr. Moes' bankruptcy, leads me to conclude that this agreement was really about debt and property settlements. That conclusion is supported by the all-encompassing nature of the support release clause.
[74] As a result, I find that, whatever amounts that she is found to be owed, Ms. Van Rooy must file claims for those amounts with the Trustee. According to the terms of Mr. Moes' conditional discharge, she shall be entitled to receive 50% of the amounts, as I find them to be, before he can be discharged from his bankruptcy.
Parties' Positions and Analysis of Amounts Claimed by Ms. Van Rooy
Increased Mortgage Payments
[75] The parties had been involved in matrimonial litigation since May 2019, when Mr. Moes commenced his application seeking to set aside the separation agreement.
[76] The mortgage renewal was offered to the parties in October, 2020, which was 22 months before Mr. Moes filed for bankruptcy.
[77] In responding to this claim. Mr. Moes cites Paragraph 8.2 of the parties' separation agreement, which provided as follows:
8.2 Carol will continue to reside in the matrimonial home. Carol shall be solely responsible for all expenses in relation to the home.
[78] Mr. Moes submitted that this clause precludes him from being responsible for any increased costs incurred by Ms. Van Rooy in connection with the variable rate mortgage on the matrimonial home, claiming that it was an "expense in relation to the home."
[79] Mr. Moes' position is also that a claim for him to pay five years of increased interest costs is "unreasonable." He submitted that Ms. Van Rooy, who had counsel, had two months between the date of the renewal offer and the renewal date to bring a motion compelling him to either sign the agreement for the renewal or to dispense with his signature. Instead, he argues, Ms. Van Rooy simply paid the increased interest for five years.
[80] This was a jointly owned property, and the terms of the mortgage bound both parties in October 2020. I have no evidence that, even if Ms. Van Rooy had brought a motion to dispense with Mr. Moes' signature on the rental form before December 2020, it would have been binding on the RBC. The bank would have had to be served. It may have objected to the relief claimed. I do not know.
[81] I agree that she could possibly have brought a motion seeking an order that he sign the agreement. She did not do so. I do not know why.
[82] Asked why he refused to execute the mortgage extension in December 2020 that would have provided for a lower interest rate twenty-two months before he went bankrupt and was still liable on the mortgage, Mr. Moes testified that he was irked when Ms. Van Rooy arranged for the mortgage to be serviced through the RBC branch in Aylmer, rather than the branch that it had previously been serviced through in St. Thomas. Coming from London, where he was residing at the time of the renewal, he complained that he would have had to drive an extra 20 minutes to Aylmer to sign the renewal form.
[83] He also testified that, had he signed the mortgage renewal, he would have been precluded from obtaining a mortgage on any new property he might have purchased. That claim is beside the point. The fact is that, whether or not he signed the extension, he was still a debtor of RBC on the mortgage.
[84] Moreover, he provided no evidence that he was, during a period when he was clearly struggling financially and on the road to bankruptcy, seeking another mortgage, Surely, his ability to service two debts would have been a factor in his efforts to seek that alleged "other mortgage." That fact, alone, would likely have precluded him from obtaining another mortgage on a different property.
[85] In my view, Mr. Moes's failure to drive an extra 20 minutes on one occasion to sign the mortgage extension was more than simply "not reasonable." It was deliberate and spiteful.
[86] While I can accept Mr. Moes' claim that mortgage payments are "expenses" related to the matrimonial home and that, because Ms. Van Rooy would continue to reside there without Mr. Moes, she should pay the expenses related thereto, the issue is not whether Ms. Van Rooy is obliged to pay those expenses.
[87] The issue is whether she should be required to pay the increased expenses that arose solely because Mr. Moes failed to comply with his obligation under paragraph 8.3 of the agreement. I find that she should not.
[88] Ms. Van Rooy's increased costs for five years flowed entirely from the single act of Mr. Moes refusing to sign the mortgage extension before December 2020.
[89] As for Mr. Moes' argument that the agreement contained no clause requiring him to indemnify Ms. Van Rooy for any of the expenses related to the matrimonial home, while there is no specific clause to that effect, Ms. Van Rooy's claim in the litigation against Mr. Moes was for reimbursement of the increased sums she paid on the mortgage as a result of his failure to sign the extension agreement. She relies on his "default" as the basis of her claim. It is a claim for breach of contract, which he acknowledges doing, and damages. His liability lies in breach of contract, not indemnity.
[90] The die was cast when he refused to sign the extension agreement long before he went bankrupt. Only the numbers need to be filled in after his bankruptcy.
[91] Therefore, I conclude that, as to this debt, consisting of the damages she incurred as a result of Mr. Moes' contractual breach, Ms. Van Rooy's claim against Mr. Moes is in the amount of $24,701.46.
[92] Ms. Van Rooy is entitled to file a claim in Mr. Moes' bankruptcy for that amount, as an unsecured creditor.
Primary Line of Credit and Debt Insurance
[93] At the time of the bankruptcy, the parties' joint indebtedness to RBC on their Primary Line of Credit amounted to $20,926.68.
[94] Mr. Moes listed RBC as an unsecured creditor for the full amount of the indebtedness when he filed his assignment in bankruptcy. The Trustee accepted his quantification.
[95] Over the period between October 2018, when Mr. Moes stopped paying his share of the interest, until she paid the principal in full in August 2025, Ms. Van Rooy paid interest and insurance costs on the Primary Line of Credit in the amount of $17,076.97.
[96] Ms. Van Rooy also paid the outstanding balance of $20,926.68 owing in August 2025.
[97] However, Mr. Moes' conditional discharge requires that, in order to receive his final discharge, he must pay RBC only one-half of the principal balance owing on the Primary Line of Credit. That will be $10,463.34.
[98] If Ms. Van Rooy had continued to pay only interest on the Primary Line of Credit until Mr. Moes receives his final discharge, at that time she would only have had to pay the other half of the principal balance of $10,463.34 to RBC for the Primary Line of Credit to have been paid in full. At that point, the parties would have been discussing Mr. Moes' contribution to the interest and insurance payments.
[99] As for interest and insurance paid by Ms. Van Rooy, she seeks to recover 100% of the $17,067.97 that she paid to RBC. Her rationale is that she paid 50% of the principal and Mr. Moes refused to cancel the insurance on the Line of Credit.
[100] Mr. Moes agrees that he is responsible for 50% of the interest paid by Ms. Van Rooy, $8,538.49.
[101] I agree with Mr. Moes. It was a joint Line of Credit. Every interest and insurance payment made by Ms. Van Rooy after October 2018 was attributable 50% to her and 50% to Mr. Moes. She remained fully responsible for the Line until she paid it in full. She was making interest payments on behalf of both parties as debtors of RBC. Had she not done so, RBC would have pursued her for the full balance.
[102] Therefore, Ms. Van Rooy is entitled to claim $8,538.49 against Mr. Moes in his bankruptcy.
[103] While she will only receive 50% of that amount pursuant to the terms of his conditional discharge, that is in line with his other creditors having to write off 50% of what he owed them because of his bankruptcy.
[104] While that, undoubtedly, will seem unfair to Ms. Van Rooy, it accords with the law and the conditional discharge order of Deputy Registrar Stevens.
Secondary Line of Credit and Debt Insurance
[105] The debt to RBC on the Secondary Line of Credit was incurred in 2021, long after the parties had signed their separation agreement. It is agreed that Mr. Moes was the person who drew against the Line, and that he used the funds for his own benefit.
[106] When he made his assignment in bankruptcy, Mr. Moes listed RBC as an unsecured creditor for the full amount owing on the Secondary Line of Credit in the amount of $4,800.00.
[107] Since then, Ms. Van Rooy made interim payments of interest ($996.41) and insurance ($505.24) and retired the total remaining balance of the Secondary Line of Credit in the amount of $4,663.28, thus paying a total of $6,164.93.
[108] As was the case with respect to the Primary Line of Credit, Ms. Van Rooy was liable for one half of all interest and insurance amounts paid on the Secondary Line of Credit because both parties were debtors to RBC with respect to this Line of Credit. She was also liable, as between the parties, for one-half of the principal amount of the line. To recover one half of that amount, she will have to file a claim with Mr. Moes' Trustee.
[109] Because it was a joint line of credit, the position of Mr. Moes at the hearing was that he was only responsible to RBC for one-half of this debt, which will be paid in accordance with his Conditional Discharge.
[110] In my view, like the Primary Line of Credit, Ms. Van Rooy, as a joint debtor, was also 50% responsible for the Secondary Line of Credit.
[111] That means that, as proposed by Mr. Moes, Ms. Van Rooy's claim against him is limited to one-half of the principal that he will not have paid when discharged from bankruptcy ($2,331.65) plus the interest and insurance ($1,501.65) paid by Ms. Van Rooy. That amount totals $3,833.30.
[112] If these claims are accepted, Ms. VanRooy will recover from Mr. Moes, through his bankruptcy, one half of the $3,883.30 that she will claim, or $1,941.65.
[113] Accordingly, Ms. Van Rooy's claim against Mr. Moes in his bankruptcy will be limited to $3,833.30.
Overpayments of Principal to RBC on the Lines of Credit
[114] As I have noted, with respect to the two Lines of Credit, because Ms. Van Rooy paid the outstanding principal balances in full, while Mr. Moes, as a condition of his discharge from bankruptcy, will also be paying RBC 50% of the full principal balance that he listed on filing for bankruptcy, on Mr. Moes' discharge:
a. in the case of the Primary Line of Credit, RBC will have received 150% of the principal balanced owed by the parties – 100% from Ms. Van Rooy in August 2025 and 50% from Mr. Moes prior to his final discharge. In effect, on Mr. Moes being finally discharged from bankruptcy, Ms. Van Rooy will have overpaid RBC principal in the amount of $10,463.34; and
b. in the case of the Secondary Line of Credit, RBC will have been paid principal of $7,063.24 ($4,663.24 by Ms. Van Rooy and $2,400 by Mr. Moes) - all to retire a debt the principal amount of which was $4,800.00. The difference of $2,263.24 ($7,063.24 - $4,800) represents an overpayment of principal to RBC by Ms. Van Rooy.
[115] It seems to me that Ms. Van Rooy has three potential options available to her to address those overpayments to RBC, none of which seem mutually exclusive.
a. She can discuss with Mr. Moes' Trustee whether the amounts that would otherwise be directed to RBC in payment of his liability on the two Lines of Credit pursuant to his Conditional Discharge can be paid to her instead of RBC, since she has retired the full debt, which included Mr. Moes' half of each.
b. She might also seek a ruling from the Superior Court, in Bankruptcy, about whether she can stand in the place of RBC for the purposes of the Trustee paying her, instead of RBC, for the reason noted in sub-paragraph a.
c. She might also discuss with RBC the findings herein and seek repayment to her by RBC of the overpaid principal sums of $10,463.34 and $2,263.34.
Ordered Costs of $10,000
[116] While I was of the initial view that the costs award in favour of Ms. Van Rooy should escape Mr. Moes' bankruptcy because it was made after he was already in bankruptcy, it appears that the law does not support my initial view.
[117] The issue of whether costs incurred prior to bankruptcy, but determined after, are claims provable in bankruptcy was discussed at length in Chartered Professional Accountants of Alberta v. Neilson, [2018] A.J. No. 312 (Alta. Q.B.) The court wrote:
28 A claim provable in bankruptcy is defined in section 2 of the BIA:
claim provable in bankruptcy, provable claim or claim provable includes any claim or liability provable in proceedings under this Act by a creditor;
29 Creditor is also defined in section 2:
creditor means a person having a claim provable as a claim under this Act;
30 Subsection 121(1) of the BIA establishes the criteria for a provable claim:
121 (1) All debts and liabilities, present or future, to which the bankrupt is subject on the day on which the bankrupt becomes bankrupt or to which the bankrupt may become subject before the bankrupt's discharge by reason of any obligation incurred before the day on which the bankrupt becomes bankrupt shall be deemed to be claims provable in proceedings under this Act.
62 The Applicant also relies on a line of cases holding that a costs award in a civil claim arising out of pre-bankruptcy litigation but made after the date of bankruptcy is not a provable claim. The Applicant emphasizes that costs are discretionary and where the discretion has not been exercised before the date of bankruptcy, they cannot be considered provable claims.
63 This line of costs cases says that costs of legal proceedings are in the discretion of the Court, and until an order for payment of costs is made there is no obligation or liability to pay them and no right to recover them. Even if the litigation were substantially or entirely completed before the date of bankruptcy, the costs would not be a provable claim if the Court had not ordered costs before bankruptcy (Chaloux v. Kingston Fairways Golf Course (2004), 2004 CanLII 25162 (ON SC), 48 CBR (4th) 237 (Ont. SCJ) and Strini v. Mihalicz, 2006 ABQB 912, following Glenister v. Rowe, [1999] EWCA Civ 1221, [1999] 3 All ER 452 (CA)). To like effect, though not cited by the parties, is the proposition stated in Houlden, Morawetz and Sara, The 2017 Annotated Bankruptcy and Insolvency Act (Thomson Reuters, 2017) at G36(21) that costs awarded against a bankrupt as defendant in pre-bankruptcy litigation are not provable in the bankruptcy.
64 I would not follow the costs cases cited to me (Glenister, Chaloux, Strini) or others like them. I consider them wrongly decided and inconsistent with the principles set out in AbitibiBowater.
65 There is no watertight compartment insulating costs awards relating to pre-bankruptcy litigation from the consequences of bankruptcy merely because costs are discretionary. Rather, the question is whether a costs award is too remote or speculative to be included in the claims process.
66 Those who engage in litigation in the Courts subject themselves to a costs regime which is well defined and predictable. Discretion is exercised in accordance with principle not whim.
67 In Alberta, these costs principles are established in the Alberta Rules of Court, Part 10 and well developed in case law. It is probable that costs will follow the event or events (where costs are awarded by issue) of the litigation (Rule 10.29). Cases where party and party or solicitor and client costs are the norm are well defined in case law. Where a party and party costs award is probable, the scale of costs is predictable….
68 Pre-bankruptcy costs in civil litigation are sufficiently predictable that they should be included as provable claims. They are not remote or speculative. The trustee in bankruptcy would need to value them having regard to contingencies.
[118] This is the only authority I could find on this point. As such, I find it to be persuasive in its logic.
[119] As in Alberta, costs principles in family cases in Ontario are established in Family Law Rule 24 and "well developed in case law." The comments made by the Court in Paragraphs 67 and 68 of Chartered Professional Accountants of Alberta v. Neilson are equally applicable in Ontario family cases.
[120] As a result, Ms. Van Rooy's post-bankruptcy costs, which related to Mr. Moes' pre-bankruptcy withdrawal of his application, are provable as a claim in Mr. Moes' bankruptcy.
[121] She has already filed a claim for her costs with Mr. Moes' Trustee. In doing so, she acted appropriately.
Mr. Moes' Claim for a Divorce
[122] Both parties have requested that I finalize the divorce that was claimed by Mr. Moes in his now-withdrawn application. Ms. Van Rooy made no claim of her own for a divorce.
[123] I have located no authority that permits me to revive, in whole or in part, a withdrawn claim. As a result, there is no longer a claim for divorce before the court.
[124] If either party wishes to obtain a divorce, he or she must commence a new Application for Divorce (Form 8A). Alternatively, both parties may file a joint claim for a divorce.
Order
[125] In the result, I make the following order:
Ms. Van Rooy's claims against Mr. Moes are valued as follows for the purposes of her filing additional claims against him with his Trustee in Bankruptcy:
a. Amount owing as a result of his failure to extend the mortgage on the matrimonial home: $24,701.46
b. Amount owing to Ms. Van Rooy on the RBC Line of Credit in the amount of $20,926.68: $8,538.49
c. Amount owing to Ms. Van Rooy on the RBC Line of Credit in the amount of $4,800.00: $3,833.30
Ms. Van Rooy shall pay to Mr. Moes' Trustee in Bankruptcy the sum of $870.29, constituting 50% of the sale of stocks jointly owned by the parties at the time of Mr. Moes' assignment in bankruptcy.
The parties are strongly encouraged to settle the issue of costs. If they cannot, they may forward written submissions to me through the Family Court Judicial Assistant at St. Thomas by no later than 15 days from the date that this endorsement is released to them.
The parties' costs submissions shall not exceed three typewritten pages in Times New Roman 12-point font, with double spacing.
The parties' costs submissions shall be accompanied by any offers to settle, whether accepted or not.
If no costs submissions are received from at least one of the parties by the date that is 15 days from the date that this endorsement is released, costs shall be deemed to have been settled, neither party shall be entitled to an order for costs, and no such order shall thereafter be made.
Justice T. Price
Date: March 19, 2026
[^1]: Throughout the agreement, Mr. Moes is called "John" because he was identified as one of the parties by the name John "Jan" Albert Moes."