Taylor v. Cvijan, 2026 ONSC 2875

CITATION: Taylor v. Cvijan, 2026 ONSC 2875

COURT FILE NO.: FS-24-00047378-0000

DATE: 2026 03 09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Franklyn Scott Taylor

Applicant

– and –

Jane Cvijan

Respondent

Self-represented Applicant

Katherine Badenoch, for the Respondent

HEARD: December 15, 2025

REASONS ON SUMMARY JUDGMENT MOTION

Stewart J.

1Motion, by applicant/father, to set aside separation agreement.

Background Facts

2The parties married in 2009. The parties have two children, both of whom are currently under the age of 18 years.

3The parties separated in early December 2019. The applicant, Mr. Taylor, and respondent, Ms. Cvijan, signed a separation agreement on December 9, 2019. Among other things, the agreement provided that Mr. Taylor would give up his equitable interest in the matrimonial home.

4Mr. Taylor transferred title in the home to Ms. Cvijan for consideration of $0, in accordance with the agreement.

5At the time the separation agreement was executed, both parties were practicing lawyers in Ontario. Ms. Cvijan obtained independent legal advice at the time of signing the separation agreement. Mr. Taylor did not.

6The separation agreement states that the agreement replaces all oral or written agreements made between the parties and that the document represents the complete agreement.

7Ms. Cvijan listed the matrimonial home for sale in the spring of 2022, and it sold later the same year,

8In 2022, there were some text messages from Ms. Cvijan which referred to Mr. Taylors funds from the house sale. However, by email dated December 8, 2022, Ms. Cvijan sated that Mr. Taylor did not have an equitable interest in the house pursuant to the separation agreement. Mr. Taylor responded, on the same date, that he was entitled to 50% of the net proceeds from the sale of the house.

9Mr. Taylor started this proceeding in 2024. It is not clear to the court what happened between December 2022 and Mr. Taylor starting this proceeding in 2024.

10There are parenting issues to address in this because Mr. Taylor moved from Ontario to Newfoundland in 2022.

11The parties agreed, as a first step in the litigation, to bring this summary judgment motion to determine the enforceability of the separation agreement.

12For the reasons that follow, the court finds that the separation agreement dated December 9, 2019, is enforceable.

Issues

13The issues on this motion are:

a. Is this motion appropriate for summary judgment?

b. Are the preliminary section 55 criteria are met?

c. Is section 56(4)(c) engaged?

d. Is there any basis to set aside the separation agreement?

Positions of the Parties

14The parties agree that a summary judgment motion is the appropriate process to decide the issues regarding the separation agreement.

15Mr. Taylor argues that he has brought himself within section 56(4)(c) and that the court should exercise its discretion to set aside the separation agreement. Mr. Taylor’s argues that section 56(4)(c) is engaged in the following ways:

a. Ms. Cvijan made a fraudulent misrepresentation;

b. In the alternative, the parties did not have a meeting of the minds, and the contract was uncertain;

c. In the alternative, the agreement was a sham and unenforceable; or

d. In the alternative, the parties had a binding settlement agreement.

16Ms. Cvijan agues that the applicant cannot identify any grounds on which section 56(4)(c) of the Family Law Act is engaged, and, in the alternative, there is no basis to set aside the separation agreement.

This motion is appropriate for summary judgment.

17Rule 16(6) of the Family Law Rules provides that the court shall make a final order if there is no genuine issue requiring a trial of a claim or defence.

18There will be no genuine issue requiring a trial when the court is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the matter:

a. Allows the court to make the necessary findings of fact;

b. Allows the court to apply the law to the facts; and

c. Is a proportionate, more expeditious and less expensive means to achieve a just result¹.

19Both parties consented to the validity of the separation agreement being determined by summary judgment motion.

20The separation agreement was signed on December 9, 2019. This motion was argued six years after separation agreement was signed and just over three years after the matrimonial home was sold. The parties had ample opportunity to explore their case, including finding documents and conducting cross examinations. Neither party argued that there was missing evidence. Neither party argued that a trial was necessary to determine the validity of the separation agreement.

21I find that I am able to make the necessary findings of fact, apply the law to the facts and achieve a just result using the court’s summary judgment powers.

The preliminary section 55 criteria are met.

22In order for a domestic contract, such as a separation agreement, to be enforceable, it must comply with the requirements of section 55(1) of the Family Law Act in that the agreement must be made in writing, signed by the parties and witnessed.

23The parties agree that the separation agreement is a domestic contact.

24The parties also agree that the separation agreement dated December 9, 2019, was in writing, signed by the parties, and witnessed.

25The preliminary criteria of section 55(1) are therefore met.

Test for setting aside separation agreement

26Domestic contracts are enforceable instruments that resolve the legal issues arising from the end of a relationship. In the case of cohabitation and marriage contracts, domestic contracts govern the future rights and responsibilities of parents and/or former spouses².

27A separation agreement is a form of domestic contract. Section 54 of the Family Law Act provides that two people who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations.

28As noted above, the separation agreement in this case is enforceable in that it complies with the formal requirements of section 55 of the Family Law Act in that it is in writing, signed by the parties and witnessed.

29As a general and longstanding policy, courts prefer to maintain certainty and finality by enforcing duly executed domestic contracts. Parties are not required to have had independent legal advice, or to have negotiated on perfect information for a domestic agreement to be enforceable. Parties are allowed to make their own bargains³.

30Section 56(4) of the Family Law Act states that the court may set aside a domestic contract:

a. If a party failed to disclose significant assets, debts or other liabilities in existence when the domestic contract was made;

b. If a party did not understand the nature or consequences of the domestic contract; or

c. Otherwise in accordance with the law of contract.

31Mr. Taylor relies only on section 56(4)(c). There is no argument that either party failed to disclose assets or debts. There is no argument that a party did not understand the nature of the contract.

32There is a two-part analysis in considering whether to set aside a domestic contract pursuant to section 56(4):

a. Can Mr. Taylor (the party seeking to set aside the agreement) demonstrate that section 56(4)(c) has been engaged?

b. If yes, is it appropriate for the court to exercise its discretion in favour of setting aside the agreement⁴?

33As noted above, Mr. Taylor raises four arguments

a. Ms. Cvijan made a fraudulent misrepresentation;

b. There was an absence of consensus and uncertainty;

c. This was a sham agreement;

d. There was a settlement agreement.

There was no fraudulent misrepresentation.

34Mr. Taylor argues that the separation agreement should be set aside due to Ms. Cvijan’s fraudulent misrepresentation. In oral argument, Mr. Taylor described fraudulent misrepresentation as his main argument.

35Fraudulent misrepresentation requires there to have been a false statement of fact (which the maker knew to be false or made it recklessly without knowing whether it was true or false). The court must also find that the claimant relied (reasonably) on the representation and suffered a loss as a result⁵.

36Mr. Taylor’s argument for fraudulent misrepresentation is a three-step process:

a. Ms. Cvijan misrepresented to him that the purpose of the separation agreement was to allow her to obtain financing to resolve a debt issue and that he would maintain an equitable interest in the matrimonial home;

b. Ms. Cvijan made that false representation to induce Mr. Taylor into signing the separation agreement; and

c. Mr. Taylor suffered a loss when Ms. Cvijan would not pay Mr. Taylor’s portion of the proceeds when the matrimonial home was sold.

37This argument cannot succeed. There is no evidence of a fraudulent misrepresentation.

38First, none of the communications at the time the separation agreement was negotiated state that the purpose of the separation agreement is to obtain financing to resolve a debt issue. The one email Mr. Taylor relies on does not stand for this proposition. The email from Ms. Cvijan (dated December 6, 2019) refers to her reorganizing her finances but does not go so far as to say that the purpose of the separation agreement is to resolve a debt issue.

39Second, there is no evidence to support the proposition that Mr. Taylor was promised a share of the matrimonial home at any point prior to him signing the separation agreement. The evidence is exactly the opposite. The final version of the separation agreement, which both parties signed on December 9, 2019, has Mr. Taylor giving up his claim to the matrimonial home. The separation agreement requires Mr. Taylor to transfer title in the matrimonial home to Ms. Cvijan, which he later did.

40Later in 2022, around the time the matrimonial home was being sold, there were some messages from Ms. Cvijan which referred to Mr. Taylor receiving proceeds from the matrimonial home. Ms. Cvijan says that these messages were sent to placate Mr. Taylor who was being difficult and threatening. It is irrelevant why these messages were sent. The content of these messages is also irrelevant. The bottom line is that the parties knowingly signed a separation agreement in which Mr. Taylor did not have any rights to any proceeds from the matrimonial home. There was never any amendment to that agreement.

41The court finds that there is no evidence of a fraudulent misrepresentation by Ms. Cvijan. Therefore, section 56(4)(c) of the Family Law Act is not engaged. There is no basis to move to the second part of the LeVan analysis based on the fraudulent misrepresentation argument.

There is no lack of consensus or uncertainty.

42In the alternative, Mr. Taylor argues that there was a lack of consensus and uncertainty in the contract, such that the court should set aside the separation agreement.

43Mr. Taylor argues that the parties executed an agreement stating that he did not have any equitable interest in the matrimonial home while Ms. Cvijan simultaneously represented to Mr. Taylor that he maintained his equitable interest and would receive proceeds from the home once sold.

44There is no evidence to support Mr. Taylor’s position.

45The parties separated at the beginning of December 2019. They engaged in negotiations about the separation agreement. The first draft of the separation agreement maintained Mr. Taylor’s interest in the matrimonial home. The second draft (which was later signed by both parties) did not.

46Mr. Taylor concedes that he understood the nature and consequences of the agreement. He does not move to set the agreement aside pursuant to section 56(4)(b) of the Family Law Act.

47Mr. Taylor gave up his interests in the matrimonial home. He kept all his other assets and did not have to pay spousal support or equalization. Mr. Taylor and Ms. Cvijan made an agreement that worked for their life circumstances at the time of separation.

48The court finds that there was consensus and there was certainty in the separation agreement. This argument therefore cannot engage section 56(4)(c) of the Family Law Act and there is no basis to move to the second pat of the LeVan analysis.

The agreement is not a sham.

49In the further alternative, Mr. Taylor moved away from section 56(4) of the Family Law Act and argues that the separation is a sham agreement.

50As the court in O.K. v. M.H. found: “So long as the parties were not separated at the time of its execution, did not intend to be separated and did not intent to be found by the term of the agreement, it is a sham. A sham separation agreement is not enforceable⁶.”

51Mr. Taylor concedes in his factum that the parties were living separate and apart at the time the December 9, 2019, separation agreement was executed⁷.

52Mr. Taylor argues that the parties subsequent conduct (which did not strictly adhere to the precise terms of the separation agreement) is proof that it is a sham.

53With respect, that is retrospective analysis that ignores the intentions of the parties at the time.

54Mr. Taylor and Ms. Cvijan were separated at the time the separation agreement was executed.

55The parties intended to be, and to remain, separated.

56The parties intended to be bound by the terms of the separation agreement.

57There is no evidence to the contrary.

58To the extend that the parties behaved slightly differently than the agreement contemplated (for instance, Mr. Taylor lived in the basement instead of living in his condo when he did not have parenting weeks; the parties may have attended some school events together, the parties may have taken the children on holiday together), that does not indicate an intention not to be separated and not to be bound by the agreement.

59Fundamentally, neither party conducted themselves in a manner that would suggest that there was no agreement made at the time the separation agreement was signed on December 9, 2019. To the extent that either party behaved differently than the agreement contemplated (see examples by Mr. Taylor above) or even breached the agreement (for instance, Ms. Cvijan alleges that Mr. Taylor stopped paying child support in 2021), there is no evidence of fundamental breach or repudiation⁸.

60For Mr. Taylor to now say, in 2025, that he never intended to be bound by the agreement, in the absence of any evidence whatsoever, is nothing more than wishful thinking.

61In 2019, Mr. Taylor was a practicing lawyer, called to the bar in Ontario. He elected not to have independent legal advice. He was a capable adult who made an agreement. That he now regrets the agreement is not a basis to set it aside.

There is no separate, binding settlement agreement.

62Finally, in the further alternative, Mr. Taylor’s argues that the parties had a binding settlement agreement to split the proceeds of the house.

63There is no evidence of any agreement between the parties other that the separation agreement signed December 9, 2019.

64The separation agreement dated December 9, 20219 is the only agreement before the court.

65There is no evidence of any other agreement which amends or modifies the separation agreement.

66This argument cannot succeed.

Conclusions

67The applicant, Mr. Taylor, has not met his burden that there is any reason to consider setting aside the separation agreement. Mr. Taylor has not met his burden of demonstrating that there are any contractual concerns with the separation agreement. Mr. Taylor has not demonstrated that the separation agreement was a sham or that it was modified by any subsequent agreement.

68Mr. Taylor and Ms. Cvijan signed a binding separation agreement on December 9, 2019. As pertained to the matrimonial home, Mr. Taylor gave up his interest in favour of Ms. Cvijan giving up her right to spousal support and equalization. The parties followed through on the agreement in that Mr. Taylor did transfer title to Ms. Cvijan.

69The court finds that the separation agreement is enforceable. Mr. Taylor did not meet his burden to demonstrate that section 56(4)(c) of the Family Law Act was engaged.

70The court finds that this issue is appropriately determined on summary judgment. There is no genuine issue for trial.

71It is therefore not necessary to move to the second step of the analysis which is whether the agreement should be set aside because it is unfair.

72However, even if that conclusion is incorrect, the court would not have exercised its discretion and set aside the separation agreement.

Costs

73Neither party uploaded a bill of costs.

74The parties did not consult about costs prior to the motion, in breach of the Central West practice direction.

75The court was advised that Mr. Taylor had made an offer which would impact the costs analysis.

76Ms. Cvijan is the successful party on the application and presumptively entitled to costs.

77The parties are urged to agree on costs. If they will not, written costs submissions will be served, filed and uploaded to Case Centre on the following schedule:

a. Respondent, Ms. Cvijan, by April 7, 2026, at 4pm;

b. Applicant, Mr. Taylor, May 5, 2026, at 4pm.

c. No reply is permitted.

78These deadlines cannot be varied unless by court order. If submissions are not received by these deadlines, the court will proceed on the basis that costs are not being sought.

79Costs submissions will be double spaced, in 12-point font, and three pages, maximum (exclusive of offers, authorities and bills of costs).

Further Steps

80The parties shall contact the Milton Trial Coordinator to schedule a settlement conference for the remaining issues in the application.

Stewart J.

Released: March 9, 2026

CITATION: Taylor v. Cvijan, 2026 ONSC 2875

Footnotes

1. 1Hyrniak v. Maulin, 2014 SCC 7 at para 49; Chao v. Chao, 2017 ONCA 701.
2. 2O.K. v. M. H., 2023 ONSCV 303 at para 9.
3. 3O.K. v. M. H., 2023 ONSCV 303 at para 12.
4. 4LeVan v. LeVan, 2008 ONCA 388 at para 51.
5. 5Dean v. Rise’NBake Pastries Inc. 2001 28361 at para 29 and 30.
6. 6O.K. v. M.H., 2023 ONSC 303 at paragraph 49.
7. 7Applicant’s factum, paragraph 29.
8. 8M.S. v. I.S., 2021 ONSC 3715 at para 252.