CITATION: Johnson v. Bobanovic, 2026 ONSC 3734
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kimberley Johnson, Applicant
AND:
Robert Bobanovic, Respondent
BEFORE: Kurz J.
COUNSEL: Sally Chiarelli, for the Applicant, by Zoom
Nima Amiri, for the Respondent, in person
HEARD: June 11, 2026
ENDORSEMENT
Introduction
1The Applicant, Kimberley Johnson, moves for three heads of relief:
a. A writ of pending litigation against the real property located at 662 Sheraton Road, Burlington (the “Home”), which is solely owned by the Respondent, Robert Bobanovic. The parties shared occupancy of the Home during the period of their cohabitation;
b. A preservation order under s. 12 of the Family Law Act, R.S.O. 1990, c. F3 (the “FLA”), a provision dealing with restraining the depletion of property, or for the “possession, delivering up, safekeeping and preservation of property” under Part I of the FLA;
c. A preservation order under FLA s. 40, which allows the court, on application, to “make an interim or final order restraining the depletion of a spouse’s property that would impair or defeat a claim under” Part III of the FLA regarding support obligations.
2The parties never married but cohabited in the Home for a period of time which they do not agree upon. The Applicant says that they cohabited sixteen years while the Respondent says that their period of cohabitation lasted only eight years. The parties have no children together; however the Applicant claims that the Respondent treated her son as his own. Nonetheless, there is currently no child support request before the court.
3The Applicant seeks both a trust claim to the Home under various trust scenarios or a finding that the parties engaged in a joint family venture regarding the Home. She concedes that the Respondent purchased the Home on his own and paid all mortgage, taxes and insurance on the Home.
4However, the Applicant claims that she assisted the Respondent in improving the Home. She did so through both labour (her “sweat equity”) and the payments of certain expenses.
5Regarding her sweat equity, the Applicant deposes that when the Home was purchased:
The house was a mess. There was no hot water, it was dirty, and the carpets were stained and mouldy. I ripped out carpets, removed countless nails and staples, and purchased flooring that [her son] Brock helped to install. I stripped old wallpaper and pulled nails from the walls. With the assistance of my brother, we patched and repaired walls, filled cracks, taped drywall and painted. I paid for the equipment and materials for these jobs.
I cleaned everything, and between Brock and I, we did all the cooking. The Respondent was detoxing from drugs at home, and with our support he was "clean".
ln or around 2012, we redid the roof with the help of friends and family. Brock did the heavy lifting, and I helped out on the ground, cleaning discarded shingles and debris, and feeding everyone. Brock and I fixed and stained the deck, I cleaned underneath, cleaned the garage, and organized the shed. I maintained the garden and took pride in having our home look nice.
More recently, in the last few years, I assisted while the Respondent built a new retaining wall, repaved the driveway, and installed new sliding patio door.
6In addition, the Applicant contends that she paid certain utility bills, including cable and internet, purchased items for the Home, paid $2,000 for flooring materials for the Home and gave the Respondent another $1,000 for the Home which was not returned.
7All of that being said, the Applicant paid no rent to the Respondent, nor did she make any payments towards mortgage, taxes or insurance on the Home. That is the case even though she and her son resided in the Home for many years.
8The Respondent disputes most of the Applicant’s claims. He asserts that other than about $2,000 worth of flooring which she purchased, he paid for all utilities, supplies, repairs and maintenance for the Home.
9He asserts that the Applicant has no claim to a certificate of pending litigation against the Home in that she has no claim to an interest in it. She contributed little to it. She continues to reside in it, rent free, even though the parties separated about 2 1/3 years ago, in February 2024. He points out that a preservation order is not available under FLA s. 12 because they were not spouses for the purposes of Part I of the FLA. Furthermore, he is taking no steps to sell the Home. Since the Applicant remains living in the Home, she would know if he tries to dispose of it.
Analysis
FLA s. 12 Preservation Order
10I begin by pointing out that a FLA s. 12 preservation order is not available to the Applicant. That provision applies only to a person defined as a spouse under the Act. Section 1 of the FLA defines a “spouse” for the purposes of Part I, dealing with Family Property, as “either of two persons who are married to each other, or have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right”. Since the parties were not married and did not enter into a void or voidable marriage, this provision does not apply.
FLA s. 40 Non-Depletion Order
11That being said, a FLA s. 40 order is available. That provision states that:
The court may, on application, make an interim or final order restraining the depletion of a spouse’s property that would impair or defeat a claim under this Part.
12That part is Part III of the FLA, dealing with support obligations. For the purposes of that Part of the FLA, the term, “spouse”, is defined more broadly than under Part I. Under the definition set out in FLA s. 29(1), a “spouse” includes the s. 1(1) definition of spouse cited above, as well as:
either of two persons who are not married to each other and have cohabited
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act.
13As it is not disputed that the parties cohabited for a period that exceeds three years, the Respondent does not deny that that the s. 29(1) definition of the term, “spouse”, applies here.
14In Ainger v. Posendorf, 2019 ONSC 2220, at para. 6, McDermott J. set out the following minimal standard for the granting of a s. 40 preservation order:
Under s. 40 of the Family Law Act, the court has the power to preserve property to avoid depletion of property which would "defeat or impair a claim" under Part III of the Act; implicit in this is the fact that the court must be satisfied that the party requesting relief has a reasonable basis for his or her spousal support claim because, without a claim for support, there can be no basis for an order securing that claim.
[Emphasis added]
15In Hess v. Hess, 2023 ONSC 6399, Sah J. set out the requirements for a s. 40 order: an order of support and evidence of non-compliance with that order or risk of noncompliance. As she wrote at paras. 6 and 9:
6 A non-depletion order under s. 40 of the FLA allows a dependent to apply for an order preventing a spouse from depleting his or her property. An interim order may be made pending trial, in situations where a party has not complied with previous orders for support and the recipient is in need.
9 An order under s. 40 is usually made, therefore, when there is evidence that the payor is not complying with a support order or there is evidence of blameworthy conduct. Where the recipient has produced no evidence that their rights would be at risk without making a non-depletion order, and where there is no evidence sufficient to conclude that the payor intends to deplete their assets or those of their company, such an order should not be made. The recipient cannot rely on their bare allegations or assumed beliefs. There must be more than an unsupported "concern". See Keyes v. Keyes, 2015 ONSC 1660, at para. 76; Hadara v. Patten, 2019 ONSC 4574.
16Here, the Applicant has not obtained either an interim or final support order. She issued her application, in which she requested spousal support among other relief, on August 19, 2025. Yet she has not brought a motion for interim spousal support in the ten months since issuing her application.
17Further the Applicant has not provided the court with sufficient evidence to find that she is entitled to a support order.
18The issue of spousal support may be arguable, particularly depending on the actual length of the parties’ cohabitation. But the determination of the Applicant‘s income for support purposes is somewhat murky. In her sworn financial statement of May 7, 2026, the Applicant claims that her income in 2025 was $55,992 but only $19,164 this year. Yet she claims annual expenses of $84,064; an unsustainable and difficult figure to accept. That is particularly the case as she has virtually no housing expenses (she claims $100 per month for repairs and maintenance).
19The Respondent’s financial statement shows a claim that his income is $97,599.06/ yr.
20Certainly, so long as the Applicant is living rent-free in the Respondent’s home, her entitlement to spousal support is questionable in light of the facts set out above. I note that she has been living in that home, rent-free, for over 2 1/3 years since the February 2024 separation date she sets out in her Application.
21I add that the Applicant’s case for a s. 40 order is not based on any concrete action that the Respondent has taken which leads the court to believe that he is planning to sell or dissipate his interest in the Home.
22The Respondent has never threatened to liquidate any of his assets, let alone the Home. In his motion materials, the Respondent deposes that he has no interest in doing so.
23The Applicant points out that the Respondent has recently applied for citizenship in Croatia, his family’s country of origin. Croatia is a place where he often visits for what the Applicant describes as extensive periods of time. She deposes: “I have concerns that he has property there and plans to sell the home and move out of the country.” She offers no independent evidence to back up those assertions.
24The Respondent does not deny his application for Croatian citizenship and the fact that he regularly visits Croatia. But he states that he has no present intention of moving there. The evidence of an interest in Croatian citizenship does not, in itself, move the needle in the determination of the Applicant’s claim under FLA s. 40.
25As Sah J. pointed out in Hess, above, bare allegations, assumed beliefs and unsupported concerns are not sufficient to meet the test of s. 40. As set out above, the Applicant continues to reside in the Home. She would be aware should the Respondent attempt to sell it or its contents. If that were to happen, she could return to court. As it stands, I must dismiss this portion of this motion.
Certificate of Pending Litigation
26The jurisdiction to issue a certificate of pending litigation (a “CPL”), is found in s. 103 of the Courts of Justice Act, R.S.O. 1990, c. C.43, which states:
Certificate of pending litigation
103 (1) The commencement of a proceeding in which an interest in land is in question is not notice of the proceeding to a person who is not a party until a certificate of pending litigation is issued by the court and the certificate is registered in the proper land registry office under subsection (2).
27In Binio v. Kotarak, 2026 ONSC 7330, Justice A. Kaufman reviewed caselaw regarding the granting of a CPL, writing at paras. 11-12:
11 A Certificate of Pending Litigation serves to notify third parties of a claimed interest in land. Its purpose is to protect a party's asserted proprietary claim pending its determination on the merits. The certificate itself does not create any right or interest in the land (Ambassador Electric Inc. v. Fernwood Builders (London) Ltd., 2014 ONSC 3738 at para. 7).
12 In Perruzza v. Spatone, 2010 ONSC 841 at para. 20, Master Glustein (as he then was) summarized the principles applicable on a motion for leave to issue a Certificate of Pending Litigation. Those principles, which guide the exercise of discretion under s. 103 of the Courts of Justice Act, are as follows:
The test on a motion for leave to issue a certificate on notice is the same as the test on a motion to discharge a certificate (Homebuilder Inc. v. Man-Sonic Industries Inc., 1987 CarswellOnt 499 (Ont. Master) at para. 1).
The threshold relating to the "interest in land" requirement under s. 103(6) is whether there is a triable issue as to the claimed interest. The plaintiff need not demonstrate likelihood of success (1152939 Ontario Ltd. v. 2055835 Ontario Ltd., 2007 CarswellOnt 756 (S.C.J.), citing Transmaris Farms Ltd. v. Sieber, [1999] O.J. No. 300 (Gen. Div. [Commercial List]) at para. 62).
The party challenging the certificate must show that there is no triable issue as to whether the party seeking the certificate has "a reasonable claim to an interest in the land" (G.P.I. Greenfield Pioneer Inc. v. Moore, 2002 CanLII 6832 (ON CA) at para. 20).
Factors the court may consider on a motion to grant or discharge a certificate include:
(i) whether the plaintiff is a shell corporation;
(ii) whether the land is unique;
(iii) the parties' intent in acquiring the property;
(iv) whether damages are an available alternative;
(v) the ease or difficulty of assessing damages;
(vi) whether damages would be an adequate remedy;
(vii) the existence of a willing purchaser; and
(viii) the respective harm to each party if the certificate is granted or removed, with or without security (572383 Ontario Inc. v. Dhunna, 1987 CarswellOnt 551 (Ont. Master) at paras. 10-18).
- Ultimately, the decision to grant or vacate a certificate is discretionary. The court must consider all relevant circumstances and exercise its discretion in accordance with equitable principles (931473 Ontario Ltd. v. Coldwell Banker Canada Inc., 1991 CarswellOnt 460 (Gen. Div.), aff'd 1977 CanLII 1414 (ON HCJ), 1977 CarswellOnt 1026 (Div. Ct.) at para. 9).
28A. Kaufman J. added the following at paras. 14 – 16:
14 In Interrent International Properties Inc. v. 1167750 Ontario Inc, 2013 ONSC 4746 ("Interrent") at para. 15, Master MacLeod (as he then was) summarized the applicable principles as follows:
On a contested motion, the court must review all of the evidence filed by both parties and determine, on the totality of that evidence, whether there is a triable issue.
In making this assessment, the court is not required to accept the pleadings or affidavit evidence uncritically. The court may consider cross examination evidence and evaluate whether the claim has a reasonable prospect of success.
A reasonable prospect of success includes not only a likelihood of proving the underlying cause of action but also obtaining a remedy relating to an interest in land. The court must be satisfied that damages would not be an adequate remedy.
Even where the plaintiff has a potential claim to a remedy involving an interest in land, the court may nonetheless refuse a certificate if doing so would be unjust. The court must consider the equities of granting this form of interim relief. The decision is discretionary, not a mechanical application of a rigid test.
Relevant discretionary factors include the strength of the plaintiff's case, whether the land is unique, the adequacy of damages as a remedy, whether the certificate appears to be sought for an improper purpose, and the balance of convenience.
15 In Sparkman v. 2574328 Ontario Ltd., 2021 ONSC 4843, this Court confirmed that the discretionary factors applicable to a motion to discharge a certificate also apply in cases where a plaintiff seeks to trace an equitable interest or claim a constructive trust.
16 Finally, in assessing whether a proprietary remedy such as specific performance or a constructive trust is appropriate, the central question is not the "uniqueness" of the property. Rather, the inquiry is whether granting title, instead of damages, "better serves justice between the parties": Dhatt v. Beer, 2021 ONCA 137 at para. 42.
29In considering those authorities and the facts of this case, I conclude that the key issues before me in this motion regarding a CPL are: 1) whether there is a triable issue as to an interest in land; 2) whether the property is unique and 3) whether damages are available and appropriate as an alternative claim. Further, I must look to the harm which would occur if the CPL is granted or refused.
30At this stage and based only on the evidence before me, I cannot find a triable issue as to the Applicant’s claim to an interest in the Home. There is no dispute that the Respondent bought it on his own. He paid the downpayment as well as all mortgage, taxes and insurance on the Home. While the Applicant may have paid for some utilities which she utilized, may have advanced $2,000 for flooring the home and contributed some sweat equity to the Home (along with her son, who is not a party to this proceeding), she did get to live in that Home (along with her son) rent-free and continues to do so .
31While the Applicant’s counsel contends that the Home is unique because it has sentimental value to her client, that sentiment does not create uniqueness. The Applicant has pointed to no distinguishing features of the Home, other than her sentiment, which make it unique among all of the other properties in its neighbourhood.
32A trial may be necessary to determine whether the value the Applicant offered to the Home is offset by the value she has received and continues to receive in the form of free rent. But even if she is successful, the most likely remedy is a monetary rather than a proprietary remedy in the face of the Respondent’s direct financial contributions to the purchase and maintenance of the Home and the value offered to the Applicant through free rent.
33Looking at the equities between the parties, if the Applicant is successful in obtaining a CPL against the Home, it will be tied up and refinancing would be difficult for the Respondent. If the Applicant had a stronger apparent claim than the one before me, that prejudice would be a fair and reasonable price to pay in the circumstances. But in light of the other factors set out above, I find that the equities do not favour the granting of a CPL.
Conclusion
34For the reasons set out above, I dismiss this motion. However, I note that if the facts cited above change, it may be open to renew the Applicant’s requests.
Costs
35The parties should attempt to resolve the issue of costs on their own. If they are unable to do so, the Respondent may submit his costs submissions of up to three pages, double spaced, one-inch margins, plus a bill of costs/costs outline and offers to settle within 14 days of release of this endorsement. He need not include the authorities upon which he relies so long as they are found in the commonly referenced reporting services (i.e. , LexisNexis Quicklaw, or WestlawNext) and the relevant paragraph references are included. The Applicant may respond in kind within a further 14 days. No reply submission will be accepted unless I request it. If I have not received any submissions within the time frames set out above, I will assume that the parties have resolved the issue and will make no costs order.
________________________ Kurz J.
Released: June 25, 2026