CITATION: Plummer v. Plummer, 2026 ONSC 3807

COURT FILE NO.: FS-23-00039183-0000

DATE: 20260710

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PETER VICTOR WAYNE PLUMMER

Applicant

– and –

LORI DAWN PLUMMER

Respondent

Kevin M. Power, for the Applicant

Self-Represented

HEARD: November 10, 24 and December 15, 2025

Reasons for judgment

A. P. RAMSAY, J.

I. Overview.. 2

II. Background. 2

III. Litigation history. 3

IV. Issues. 3

V. Analysis. 4

A. What is the date of separation?. 4

B. Sale of the matrimonial home. 4

C. The respondent’s claim for spousal support 4

D. Is the applicant entitled to payment for equalization of net family property?. 5

E. Enforcement of equalization payment 13

VI. Prejudgment interest 16

VII. Divorce. 17

VIII. Disposition. 17

IX. Costs. 18

1This matter came before me for trial and proceeded on an uncontested basis. The respondent did not attend at the trial. She was previously represented by counsel. I am advised by counsel for the applicant that the last time she participated in these proceedings was April 2025. She has apparently not responded to his communications.

I. Overview

2The crux of this case is to resolve the financial issues between the parties. Equalization of net family property remains outstanding. The major asset for the purposes of equalization is the respondent’s pension and her interest in land in Quebec.

3The parties sold the matrimonial home and have received advances from the proceeds of sale. The remaining balance remains in the trust account of the real estate lawyer. The applicant asks that the balance be transferred to him to satisfy the respondent’s obligation to make an equalization payment. He also asks that any shortfall to satisfy an equalization payment be effected by an immediate lump sum transfer from the respondent’s pension to a locked in retirement account.

4The respondent had claimed spousal support. The applicant asks that the claim be dismissed.

II. Background

5The parties are both in their early 60’s. They were married for thirteen years. This was the second marriage for both. At the time of their marriage, the applicant had adult children from his previous relationship. The parties have no children together. The parties dispute their date of separation. For the reasons below, I accept the applicant’s date of separation of June 1, 2019.

6At the time of their marriage, the applicant was on workers compensation. He never returned to work during the marriage. Based on her admissions in her pleadings, the respondent was employed as an insurance adjuster at the time of marriage. In her Answer, she pleads that she was terminated from her employment in 2016, with full pay for little over a year and half and was eligible for her company’s pension benefits in the fall of 2017. She alleges that the pension was reduced by 30% “as a result of [her] being forced to start taking it early”. She alleges that in 2018 she started a business, Paw Patrol Dog Training, which she pleads was “intermittently successful” because of her mental health issues during different periods.

7Both parties allege disabilities which impacted their ability to work, physical with respect to the applicant, and mental health, with respect to the respondent.

III. Litigation history

8The applicant commenced this application in October 2023 seeking various orders including a divorce, an accounting of the net family property, release of funds from the net proceeds of sale of the matrimonial home, prejudgment interest and costs.

9The respondent delivered an Answer in February 2024. She sought some of the same relief as the applicant, as well as retroactive, and ongoing compensatory and non-compensatory spousal support.

10By order dated March 14, 2025, Justice Kraft fixed the trial date for November 10, 2025, the parties were directed to attend an exit pre-trial conference in October 2025, and the applicant was given leave to bring a motion to seek the release of his half-share of the net matrimonial home sale proceeds prior to trial. Counsel for the applicant advises that the respondent last attended court in March 2025.

11In May 2025, the applicant brought a motion before Diamond J. for the release of $151,126.44 of the net proceeds of sale of the matrimonial home.

12A Trial Management Conference took place before Justice Leiper on October 29, 2025. The respondent did not attend. At paragraph 4 of her endorsement, Leiper J. indicated that the trial was scheduled to proceed on an uncontested basis.

13It was open to the respondent to participate in the trial. The court has the discretion to proceed with the trial in the absence of the party: Limironi Inc. v. Susin, 1992 CarswellOnt 2766 (C.A.); Baradaran v. 6325955 Canada Inc., 2022 ONSC 1564, 83 C.P.C. (8th) 65.

14The respondent did not attend at the trial and the trial proceeded in her absence.

IV. Issues

15The main issues to be determined are:

i. What is the date of separation?

ii. Should the respondent’s claim for spousal support be dismissed?

iii. Is the applicant entitled to payment for equalization of net family property?

iv. If the applicant is entitled to payment, how should the order for equalization be enforced?

v. Divorce.

vi. Prejudgment interest.

V. Analysis

A. What is the date of separation?

16The applicant pleads that the parties began living separate and apart under the same roof with no chance of reconciliation on June 1, 2019. At paragraph 3 of her Answer, the respondent pleads that: “The parties’ relationship began breaking down on or around 2018 without chance of reconciliation from the perspective of the Respondent”. At paragraph 11, she states that she “moved out of the parties’ bedroom into a spare room on or around August 25, 2020”. The respondent has used the latter date in her financial statements as the date of separation.

17At common law, the date of separation may be established when there is an unequivocal act by a separating spouse indicating that he or she wishes to separate without possibility of reconciliation: O’Brien v. O’Brien, 2013 ONSC 5750, [2013] O.J. No. 412, at para. 52. The question is whether a reasonable person, knowing all the circumstances, would reasonably believe that the parties had a prospect of resuming cohabitation: Warren v. Warren, 2019 ONSC 1751, at para. 6. The jurisprudence has established objective factors: see, O’Brien, at paras. 54, 61 and Warren, at para. 7.

18Because the respondent did not participate in the trial, the only evidence of the date of separation is that of the applicant. The respondent cannot merely rely on the allegations in her Answer as to the date of separation. In the result, the court accepts the applicant’s date of separation as June 1, 2019.

B. Sale of the matrimonial home

19The parties sold the matrimonial home before trial. The applicant testified that the matrimonial home was purchased by the respondent before they married, and his name was later added to the property.

20Each party has received two advances of $50,000 from the sale proceeds of the matrimonial home. Both admitted in their pleadings to having received an initial advance of $50,000. At trial, the applicant testified that he received an initial advance of $50,000, and a second one, and later a further advance in May 2025. The further advance of $151,126.44 was made to the applicant pursuant to the order of Justice Diamond dated May 6, 2025. The applicant concedes that the funds that are left belong to the respondent.

21Counsel for the applicant submitted that technically the balance of the funds remaining in the real estate lawyer’s trust account belongs to the respondent. But the respondent asks that the funds be transferred to him to defray a portion of the equalization payment which he says the respondent owes him. I return to the request below.

C. The respondent’s claim for spousal support

22I am satisfied that the applicant’s request can be considered in the absence of the respondent. I am mindful that the Trial Management Endorsement of Leiper J. indicated that equalization was the only issue. The respondent’s claim for support was raised in response to the applicant’s claim for an equalization payment. In his Reply delivered in June 2024, the applicant sought an order that respondent’s claims, except those which he agreed with, be dismissed with costs. He disputed that she had an entitlement to spousal support; he disputed that she was incapable of working or contributing to her own support. He alleged that she was intentionally unemployed or underemployed and asked that her claims be dismissed with costs.

23I would dismiss the respondent’s claim for spousal support, as asked by the applicant.

24The parties were married on April 13, 2006. They separated on June 1, 2019.

25Both parties allege disabilities which resulted in an ability for each of them to be gainfully employed. The applicant admits the allegations in the Answer that he sustained a workplace injury and had been receiving worker’s compensation benefits. In his pleadings, the applicant asserts that the respondent had some mental health challenges; his pleadings acknowledge that she had been terminated from her employment.

26In her own pleading, the respondent admitted that the applicant was on disability and collecting worker’s compensation benefits when they married; she also admitted that he never worked during their marriage. The respondent further admitted in her pleading that she was working at the time of the marriage and subsequently started a business after her employment was terminated. Beyond that, the respondent did not participate in the trial to present any evidence to the court on the basis for her claim for spousal support.

D. Is the applicant entitled to payment for equalization of net family property?

27The applicant is seeking an equalization payment from the respondent to him in the sum of $178,834.04.

28Section 5 of the Family Law Act provides for the equalization of net family properties (“NFP”) upon marriage breakdown. Section 5 (1) provides that “the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them”, under various circumstances including when a divorce is granted, the marriage is declared a nullity, or the spouses are separated and there is no reasonable prospect of resume cohabitation. Section 7 of the Act prescribes the procedure and time limits for pursuing a claim for equalization.

29There is an approximate difference of $356,974.94 between the applicant’s calculation and the respondent’s calculation of her net family property. That is primarily because the respondent did not include valuations for her pension and her ownership interest in real property (lots) in Quebec, dealt with below.

30Although the respondent did not participate at the trial there is a sufficient evidentiary record, including valid deemed admissions, for me to assess the net family property of the parties. For the most part, the applicant accepted figures in the respondent’s financial statements about valuation of her debts and assets, and relied on deemed admissions, and disclosure made by the respondent. For the significant items for which the respondent provided no valuation, that is her pension and the matrimonial home, I will deal with them in more detail below. Because the respondent raised the question of the valuation of the applicant’s pension, that issue is also dealt with below.

31Counsel for the applicant says that the respondent never delivered a NFP statement. The respondent did, however, deliver two sworn financial statements sworn February 15, 2024, and June 19, 2024. In her latest financial statement, the respondent noted that her NFP was $203,257.29. The second statement did not include a value of her ¼ interest in land located in Gaspe Bay North, Quebec on the valuation date, noting “TBD”,nor her pension with Sunlife, noting “TBV” for the valuation date. Finally, although the respondent’s own pleadings make reference to her being self-employed, and the applicant refers in his own financial statement to the respondent’s business, Paw Patrol Dog Training, noted “TBD” as of the valuation date, the respondent makes no reference to the business in her own financial statement.

32In his Net Family Statement dated October 8, 2025, the applicant determined that his net family property was $223,924.06 and that of the respondent’s was $580,899.70, resulting in an equalization payment owed by her to him of $178,487.82.

33I am satisfied that based on the deemed admissions, discussed below, and the evidence before the court, the applicant has proven, on a balance of probabilities, that his net family property is approximately $223,924 and that of the respondent, is $589,899.

34As stated above, both parties filed two financial statements during the course of the litigation. The applicant also filed a Net Family Property Statement which included numbers which he says the respondent is deemed to admit because of her failure to respond to his Request to Admit dated June 4, 2025. Counsel for the applicant submits that the respondent never responded to the Request nor did she provide her own Net Family Property statement.

35Under r. 22 (2) of the Family Law Rules, a party may serve, on another party, a request to admit, “for the purposes of the case only”, that “a fact or that a document is genuine”. Rule 22(3) provides that a copy of the document must be attached unless the other party already has a copy. By virtue of r. 22(4), a party “is considered to have admitted” the fact, mentioned in the request to admit, is true or that a document mentioned is “genuine” unless that party serves a response to the request within 20 days after its service and denies that “a particular fact” mentioned is true or that “a particular document” mentioned is “genuine”.

36An admission by a party that a document is genuine is defined in r. 22(1) to include the fact that a document that is said to be an original was written, signed or sealed, as purported (r. 22(1)(a)); where the document is a copy, that it is a complete and accurate copy (r. 22(1(b)); or, if a copy of a document “that is ordinarily sent from one person to another”, such ass a letter, fax or electronic message), that that it was sent by the person from whom it purports to have been sent and received by the person to whom it was addressed (r.22(1)(c).

37The term “genuine” is equivalent to the term “authenticity”, which is the term employed by the sister provision in r. 51.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. On the evidence before me, the respondent did not serve a response to the applicant's request to admit. In the result, the jurisprudence addressing the Civil Rule is applicable to the Family Law Rule. A seminal case which deals with the effect of a deemed admission under r. 51 of the Civil Rules, Wunsche v. Wunsche, 1994 CanLII 548 (ON CA), 18 O.R. (3d) 161, at para. 19, was interpreted in the context of a family law proceeding.

38In this case, the applicant relies on the deemed admission by the respondent of the authenticity of certain documents, that is to say that they are “genuine”, as defined by the Family Law Rules. Those documents include a document entitled “FSRA Statement of Family Law Value Retired Member with a Defined Benefit Pension Family Law Form FL-4E with a family law valuation date of 2019/06/0l” and for a valuation date of 2020/08/25.

39A notice to admit is not a determination on admissibility: Findlay v. George, 2021 BCCA 12, at para. 68. The jurisprudence establishes that the rule creates deemed admissions but does not, by its application, make what is manifestly hearsay evidence admissible: see Wunsche at para. 19 Documents which are subject to a request to admit are not necessarily admissible into evidence and are still subject to the laws of evidence in terms of admissibility: Stella Psarakis Medicine v. Catharine and Carl Gonnsen, 2015 ONSC 25, at para. 32; Canpotex Ltd. v. Graham, [1985] O.J. No. 587; Wunsche, surpa.

40Aside from the documents listed above, I find that the balance of the applicant’s Request to Admit, as it pertains to documents, is deficient because it fails to: identify each of the documents, describe each of the document, state whether the document is an original or a copy, state what type of communication, if the documents is a letter, email or otherwise, or otherwise comply with the specificity required by r. 22 or the jurisprudence: see Carrol v. Stonhard Ltd,2001 CanLII 28023 (ON SC), 53 O.R. (3d) 175. In the result, I find that the request to admit is deficient with respect to the following:

i. “The documents attached to your financial statements”

ii. “The documents attached do your affidavit sworn August 21, 2024”

iii. “The documents attached to the financial statement of the applicant sworn October 19, 2023, as no documents were identified; and,

iv. “The documents listed in the Certificate of Financial Disclosure of the applicant dated January 24, 2024”

41Rule 22(2) also speaks to “a fact”. The case law is clear that a request to admit the truth of a fact must ensure that each fact upon which the admission of the truth of the fact is sought should be set out separately to permit a precise response: see, Brion v. Brion (1996), 1996 CanLII 19748 (ON CTGD), 23 RFL (4th) 312, at para. 25; Carrol. Based on the guidance of the jurisprudence, I find that the respondent is deemed to admit the truths of the facts in paragraphs 1 to 16 of the applicants request to admit.¹ I am not inclined to accept that the respondent is deemed to admit the truth of the statements as facts contained in paragraphs 17 and 18, which are based on hypotheticals and which, in my view, are the ultimate questions to be determined by me.

42I would make the same comment with respect to paragraph 19 of the request to admit, because whether the respondent owes prejudgment interest to the applicant is a question to be decided by the court. My final comment relates to the fact that the through the request to admit refers to the “valuation date” as a reference point, it is not defined in the document. However, I am satisfied that because of the financial statements and net family property statement (the latter delivered by the applicant), the respondent would be aware that the valuation date is the date of separation. Section 4(1) of the Family Law Act defines the “valuation date” as the earliest of five dates, one of which is the "date the spouses separate and there is no reasonable prospect that they will resume cohabitation." That date, as I have found, is June 1, 2019. The financial forms completed by the respondent refers to a “valuation date”.

Valuation of respondent’s interest in real property in Quebec

43The respondent has disclosed her interest in real property located in Quebec in both financial statements that she delivered. I infer from her financial statements that she did not have such an interest on the date of marriage but did on valuation date. In her first financial statement, the respondent noted that she has a ¼ ownership interest in “Lot 6 and Lot 7 – Road Range East, Gaspe Bay North, QC”. She listed the value of her interest as “TBD” on both the valuation date and “today”.

44In her second financial statement sworn on June 19, 2024, the respondent noted “TBV” for the valuation date and provided a current value of under the “today” column of $12,100 for her one fourth interest in the Quebec property. She appeared to base that figure on a notice of assessment because she included the following explanation for the valuation:

Lot 6 and Lot 7 - Road Range East, Gaspe Bay North, QC (Owned with

siblings; Shelly Simpson, Sherry Simpson, and Brett Simpson)

DOV:TBV

TODAY: $48,400, based on Notice of Assessment for tax purposes

45In October 2024, following the second case conference Justice Des Rosiers made an order that both parties were to provide supporting documentation for the values in their NFP statements including the valuation of the property in Quebec.

46To date, the respondent has not provided a proper valuation of her interest in the Quebec property on the valuation date. She did provide a document dated August 14, 2024. At trial, the applicant testified about an appraisal from the real estate lawyer engaged by the respondent in Quebec to obtain a value of the property. He could not prove the document. He testified that he did not know whether the value of the property was accurate. Any opinion as to the value of the property contained in the document is hearsay and would be otherwise inadmissible. He testified that the market valuation report which valued the Quebec property at $90,000 came from the respondent.

47Parties are required to disclose all property which they own on the valuation date. Section 8 of the Family Law Act governs the disclosure of property and liabilities for the purposes of determining a spouses’ entitlement, if any, after an equalization of net family property. The provision mandates that each party must provide a statement under oath or statutory declaration disclosing “the party’s property and debts and other liabilities” both as of the date of the marriage and the valuation date.

48The applicant has included a value of $22,400.00, as the respondent’s interest in a lot in Lot 7 Road Range East Gaspe Bay North, Quebec. The applicant did not obtain an opinion on the value of real property owned by the respondent in Quebec. The respondent did not obtain a formal valuation of the property but provided a statement from a real estate agent indicating the value in the range of $90,000.00.

49I am prepared to accept that the value of the respondent’s ¼ interest in the property should be valued at $22,400, or alternatively impute that value to her, for the following reasons.

50The applicant relies on a valuation by a real estate agent retained by the respondent valuing the Quebec property. This is not a formal valuation. 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), 1987 CanLII 5234 (ON HCJ), 8 R.F.L. (3d) 225, at para. 29. 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.

51A 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: Levesque v. Comeau et al., 1970 CanLII 4 (SCC), [1970] S.C.R. 1010; Parris v. Laidley, 2012 ONCA 755. Drawing adverse inferences from failure to produce evidence is discretionary: Parris, at para. 2. The respondent did not participate in the trial, nor did she provide any explanation for her failure to provide a valuation of her interest in the Quebec property in either of her sworn financial statements.

52Both financial statements from the respondent indicated that her interest in the Quebec property was to be determined. She never provided a NFP statement disclosing the valuation. She is in breach of her disclosure obligation, and to the extent that the only information about the value of the property came from her, as part of her disclosure obligation. Counsel for the applicant submits that the disclosure was provided to support the valuation in the respondent’s financial statement and following a case conference in June 2024. 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 at paragraphs 37-38, the Ontario Court of Appeal noted that where there is a paucity of evidence as to value, a trial judge may only rely on the limited available evidence.

53It must be underlined that the respondent has a statutory obligation to disclose the value of all property on the date of valuation. Section 8 of the Family Law Act 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 Family Law 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. 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. 11. Financial disclosure is automatic and should not require court orders: Roberts, at para. 13. The Family Law Rules now include an automatic order under r. 8.0.1 for disclosure.

54I would therefore be inclined to impute the value provided by the respondent’s real estate agent as the value of the Quebec property. Alternatively, I am inclined to make an adverse inference that a proper appraisal may result in a valuation which was much higher and, in the result, more favourable to the applicant’s position and less favourable to the respondent.

55Finally, I note that the first two paragraphs of the applicant’s request to admit, which deal with the Quebec property, asked the respondent to admit a particular fact regarding the Quebec property. Each question was clear, specific and precise. The applicant asked the respondent to admit that:

• 1. The estimated market value of the property located at 291 C, boul de Gaspe, Quebec, as of the valuation date is $90,000.00.
• 2. The estimated market value of your interest in this property is 25% or $22,500 as of the valuation date.

56The respondent is therefore deemed to admit that the value of the Quebec property was $90,000 and that her interest was valued at $22,500.

Valuation of applicant’s pension

57While the respondent did not participate in the proceedings, there is a suggestion that the value of the applicant’s pension on the valuation date should be included in the calculation of his net family property. The applicant’s first financial statement noted that the value was “TBD”. In his second financial statement filed shortly before the trial, he did not include any value of the pension based on the information he received from the pension administrator for his pension.

58A spouse’s pension is property under the Family Law Act. The interest of one spouse in another’s pension benefits has long been recognized as a matter of matrimonial or family property: Fawcett v. Fawcett, 2018 ONCA 150, at para. 29; Clarke v. Clarke, 1990 CanLII 86 (SCC), [1990] 2 S.C.R. 795, at p. 824.

59The OMERS pension is therefore property under the statute. Generally, the value of the pension is included in a party’s net family property calculation. For the reasons which follow, I accept the applicant’s pension administrator’s preliminary valuation of his pension, which he has incorporated in the calculation of his NFP.

60The applicant is a former police officer. He testified that he had a pension, which was split with his first wife. He says that when he left the police force in 1999 his pension stopped. He met the respondent in 2006. The applicant had the OMERS pension at the time of the marriage although he was no longer contributing to the pension because he had retired.

61At the time the parties separated, the applicant had an OMERS pension. In his June 14, 2024, Net Family Property Statement, he noted that the value was “TBD”. At trial, the applicant relied on a letter dated October 24, 2024, from the pension administrator for the OMERS Primary Plan regarding the valuation of the pension. In the letter, the plan administrator took into consideration that “the spousal period began with the date of marriage, April 13, 2006, and ended with the separation date of August 25, 2020”. While the pension administrator used the alternative date of separation, this is a neutral factor, because it is later than the date of separation which I have determined and the same circumstances would have applied to the June 2019 date of separation.

62In the October 2024 letter, the pension administrator noted that there was no benefit earned during the spousal period and therefore nothing to value because the “spousal period began after your client's termination with your OMERS employer, they were not accruing any credited service or making contributions to the Plan during that time span as they were no longer part of the Plan.”

63Section 10.1(1) of the Family Law Act provides a procedure for determining the imputed value of a spouse’s interest in a pension plan. The provision prescribes that the determination is made in accordance with s. 67.2 of the Pension Benefits Act, R.S.O. 1990, c. P.8.

64Section 67.2 of the Pension Benefits Act mandates that it is the administrator who must make the preliminary valuation of the pension of a member, former member or retired member, before apportionment, in accordance with the regulation and family law valuation date. The relevant part of the provision reads as follows:

67.2 (1) The preliminary value of a member’s pension benefits, a former member’s deferred pension or a retired member’s pension under a pension plan, before apportionment for family law purposes, is determined by the administrator in accordance with the regulations and as of the family law valuation date of the member, former member or retired member and his or her spouse.

Same, spouse

(2) The preliminary value of the pension of the spouse of a retired member under a pension plan, before apportionment for family law purposes, is determined by the administrator in accordance with the regulations and as of the family law valuation date of the spouse and the retired member.

65In this case, the applicant, a retired member under a pension plan (s. 67.2(2)) obtained a preliminary determination of his pension on the family law valuation date. Pursuant to s. 67.2(5), the imputed value for family law purposes of a spouse’s pension benefits for the period beginning with the date of marriage and ending on the family law valuation date for the purpose of Part 1 (Family Property) of the Family Law Act, is the preliminary value attributed by the administrator.

66Under s.67.2(8), the administrator must determine the imputed value. The provision reads:

Duty to determine imputed value

(8) Once the application is complete, the administrator shall determine the imputed value, for family law purposes, of each spouse’s pension benefits, deferred pension or pension, as the case may be.

67The respondent did not attend the trial and therefore did not challenge the valuation. There is no evidence before me to indicate that the date of marriage value of the pension and date of valuation, that there was any increase in the value, nor that this would make a difference given the nature of the pension, which is a defined benefit pension plan according to the information from the pension administrator.

68The applicant’s Request to Admit specifically asked the respondent to admit that the FSRA Statement dated June 1, 2019, is genuine. She is therefore deemed to admit that the document is a true copy of the original, and that it was sent as it appears to have been and received by the person to whom it was addressed.

69The respondent has not denied that the October 2024 letter from the administrator is genuine. She has not participated in the trial to challenge the authenticity of the document or the preliminary valuation made by the pension administrator as mandated by the statute.

70There is no basis for the court to challenge the preliminary valuation provided by the pension administrator as mandated by statue. I therefore accept the applicant’s valuation, or rather, “no value for equalization” for his OMERS’ pension as set out in his NFP statement on date of marriage and the valuation date.

Valuation of respondent’s pension

71Justice Kraft noted in the Trial Management Conference form dated March 14, 2025, that the respondent had still not valued her pension. The respondent did not remedy the situation.

72The applicant relies on two valuations for the respondent’s pension for the different valuation dates. I need only deal with the figure for the June 2019 valuation date which I have accepted as the date of separation.

73The applicant obtained a Statement of Family Law Value Retired Member with a Defined Benefit Pension from Sunlife which valued the respondent’s pension on June 1, 2019, that is the valuation date, in the amount of $378,669. In his Request to Admit, the applicant asked the respondent to admit that: “The value of your Intact pension on a valuation date of June 1, 2019, is $378,669”.

74I am satisfied that the evidentiary record which includes the preliminary valuation of the respondent’s pension on the valuation date, as mandated by statute, and the deemed admissions, the court may impute the value of her pension on a valuation date as determined by the administrator.

75I am also satisfied that it is appropriate for the applicant to rely on the respondent’s own values for the properties set out in her sworn financial statements in determining her net family property. I am further satisfied that because of the deemed admissions by the respondent of the truth of the fact of each of the properties identified, the values of which were included by the applicant in the calculation of the parties’ net family property calculation. I find that the applicant has established that his net family property is $223,924.06 and the respondent’s net family property is $580,899.70.

76In the result, I find that the respondent owes the applicant an equalization payment of $178,487.82.

E. Enforcement of equalization payment

77The applicant asks that the equalization payment to him be made by a transfer of the net proceeds from the sale of the matrimonial home which remains in the real estate lawyer’s trust account and by a lump sum payment from the respondent’s pension. The applicant concedes that the funds in the trust account technically belong to the respondent.

78The goal of the Family Law Act is to achieve a division of assets that is fair to both parties: Fawcett at para. 33. The choice of a method for settlement of the equalization obligation is highly contextual and fact-based: Best v. Best, 1999 CanLII 700 (SCC), [1999] 2 S.C.R. 868, at para. 109.

79On the evidence before me, the only major assets the respondent must satisfy her obligation to make the equalization payment are the net proceeds of the sale and her pension. The applicant has provided a letter from the real estate lawyer, Sheldon Sherman, which reveals that $151,126.43 is being held by him.

80The applicant submits that the court has the authority to order the respondent’s share of the net proceeds of sale, paid to the applicant under s.9(1)(d) of the Family Law Act. I am satisfied that the court may order the transfer of the respondent’s share of the remaining net proceeds to the applicant to a credit to her obligation to make the equalization payment awarded for the following reasons.

81The matrimonial home was a jointly held property. The applicant concedes that the 50% of the net proceeds remaining in the lawyer’s trust account belongs to the respondent. Under s. 9 of the Family Law Act, the court has a number of powers to make orders to satisfy a spouse’s entitlement to an equalization including making an order that one spouse pays the other the amount the court finds that souse is entitled to; that “securing, including a charge on property” be given; that payments be made in installments, or that part of the amount be delayed, for periods not exceeding ten years; order that “property be transferred to or in trust for or vested in a spouse”; or that property be portioned or sold.

82In Senthillmohan v. Senthillmohan, 2023 ONCA 280, the Ontario Court of Appeal upheld a motion judge’s decision transferring one half-share of the net proceeds of a sale of the matrimonial home to the wife in the face of competing claims by third party creditor. I note however that though the applicant relied on Senthillmohan as a basis for transferring the respondent’s share in the lawyer’s trust account to satisfy her equalization payment, that decision had nothing to do with equalization but rather with the wife’s ownership interest. The point was noted by that Court at paragraph 18, where the Court stated: “We reject the appellant’s argument about equalization. The wife’s claim to the sale proceeds has nothing at all to do with equalization. Hers is a direct ownership claim: Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] 1 S.C.R. 70.”

83In any event, the respondent did not participate in the trial to advance any argument of competing claims or hardship. I agree with the applicant that the respondent had the opportunity to be present and advance any claims she may have wished to in relation to the payment of the equalization but chose not to participate at the trial. There is no evidence by the respondent before me of any competing claims to the funds.

84I am, however, satisfied pursuant to s. 9 (1) (d) of the Family Law Act, the balance of the net proceeds of the sale of the matrimonial home held by Mr. Sherman in his trust account shall be used to satisfy a portion of the equalization payment owed by the respondent to the applicant.

85Turning next to the request by the applicant for a division of the respondent’s pension by way of a lump sum transfer. Section 10.1 of the Family Law Act permits a spouse to satisfy an equalization payment by dividing the pension through an immediate lump sum payment.

86There is no presumption of a statutory onus that an equalization payment will be made by a transfer of a lump sum payment from a pension plan: VanderWal v. Vanderwal, 2015 ONSC 384 at para. 11; Fortier v. Lauzon, 2017 ONSC 7503 at para. 38, aff’d 2018 ONCA 1086. As noted by Fraser J. in Browne v. Browne, 2026 ONSC 99, at para. 93, each case depends on its own facts and the factors set out in s.10.1(4) of the Family Law Act.

87The Court of Appeal for Ontario held that before a pension is in pay, only lump-sum division is available, since there is no monthly payment stream to divide. However, once a pension is being paid out monthly, the judge can choose between a lump sum payment and pension payments: Fawcett, at para. 32. That being said, the Court of Appeal in Fawcett made it clear that it will not always be appropriate to order a lump-sum division of a pension in pay. Based on the respondent’s own pleading and her financial statements, her pension is in pay: a fact that is not denied by the applicant. Based on the guidance offered by that Court, achieving a just result will depend on the nature of the underlying legislation, the application of the criteria listed in s. 10.1(4) of the Family Law Act, and such other matters as the court considers appropriate.

88Considering the factors enumerated in s.10.1(4), at the time of the hearing, both spouses had a pension though the value of the applicant’s pension at the time of he hearing is not known. Based on the evidence, the applicant has no significant assets. The respondent does not appear to have much in way of liquid assets. Her financial disclosure indicates that she has an interest in land in Quebec; a vehicle worth significantly more than the applicant’s vehicle; a bank account, opened post separation, with significantly more money in it than the applicant’s accounts, combined, including accounts which they jointly owned. And additionally, she was the sole proprietor of a business, Paw Patrol Dog Training, though no valuation was provided for the business.

89No value was imputed to the applicant on account of his OMERS pension in calculating his net family property, whereas the proportion of the respondent’s net family property that consists of the imputed value of her pension interest is approximately 65%. The applicant has asked that the funds be transferred to a locked in retirement account (LIRA), but because of his age, and because he continues to receive WCB benefits, this may be a liquid asset to the applicant.

90The applicant has not obtained any formal valuation of the anticipated taxes for disposition of the pension. Counsel for the applicant submits that he used an average rate of about 10% because in the past experts have employed the range of 8 to 10 percent. The applicant did not provide any authority for the court in support of this position.

91The applicant did however ask the respondent to admit the truth of the fact that the contingent disposition costs only with respect to the applicant’s survivor pension. The applicant did not ask the respondent to admit any facts about any disposition costs associated with her pension. However, he did include a contingent disposition cost of 10% under “Part 5: Debts and Other Liabilities”, for each party, and in the result, some consideration has been given to the tax consequences resulting from a disposition of her pension. At the same time, the respondent’s exposure to pay the applicant an equalization was correspondingly reduced by the notional disposition costs of her pension of $37,866.90.

92As for the applicant’s disposition costs, the respondent is deemed to admit that the contingent disposition costs of his pension are 10% and also deemed to admit that the figure is $2,508.

93The lump sum amount to be paid by the respondent to satisfy the shortfall of the equalization payment owed to the applicant is approximately $52,000, which will not significantly encroach on the capital amount available to the respondent to meet her own retirement needs.

94At the trial the applicant testified about the advances made to him and needing money. He testified that his mother suffered a stroke and he had been taking care of her. He is entitled to a modest survivor pension through the respondent’s pension, which was included in the calculation of his net family property.

95As of the date of her 2024 financial statement, the respondent was running her business Paw Patrol Dog Training, having come out of retirement. The applicant, on the other hand was on workers compensation at the time they married, during their marriage and was retired at time of the hearing. Again, the respondent did not provide a valuation of her business which in my view may be an appropriate factor to consider under the under the category of “such other matters as the court considers appropriate.”

VI. Prejudgment interest

96In addition to the equalization amount, the applicant is seeking prejudgment interest in accordance with the provisions of the Courts of Justice Act, R.S.O. 1990, c. C.43, at a rate of 2% per annum from the date of separation.

97Under section 128(1) of the Courts of Justice Act, prejudgment interest is calculated from the date the cause of action arose to the date of the order. The cause of action, for equalization purposes is generally the date of separation: Barber v. Magee, 2017 ONCA 558, 139 OR (3d) 78, at para 8. I therefore concluded that the appropriate date for the commencement of prejudgment interest in this case is June 1, 2019, which I determined to be the date of separation.

98I reject the applicant’s argument that the fact that the respondent did not respond to the statement in his request to admit that prejudgment interest was owing from the date of separation she was deemed to admit that prejudgment interest is owing from the date of separation. An award of prejudgment interest is in the discretion of the trial judge and to be decide based on the statutory prerequisites and the jurisprudence.

99Although the jurisprudence establishes in general a payor spouse must pay prejudgment interest on an equalization payment owing to the payee spouse: Burgess v. Burgess (1995), 1995 CanLII 8950 (ON CA), 24 O.R. (3d) 547, at p. 547; Muraven v. Muraven, 2021 ONCA 657, at para. 16. There are exceptions. In Muraven, the Ontario Court of Appeal identified a number of those exceptions including: “where, for various reasons, the payor spouse cannot realize on the asset giving rise to the equalization payment until after the trial, does not have the use of it prior to trial, the asset generates no income, and the payor spouse has not delayed the case being brought to trial”, citing Burgess at p. 552 and Fielding v. Fielding, 2015 ONCA 901, 129 O.R. (3d) 65, at para. 43.

100The applicant also argues that the respondent has had the benefit of receiving her pension since the date of separation and has had the use of those funds for over six years. He argues that a split of monthly pension payments could have been done from the date of separation and that it has been 6 years since the parties separated without any division being made.

101In this case, I am satisfied that prejudgment interest is appropriate because of the respondent’s repeated non-disclosure, failure to value assets, and breach of court orders for disclosure and the over six-year delay in the equalization payment being made. An award of prejudgement interest encourages timely settlement of equalization claims: Heon v. Heon (1989), 1989 CanLII 4302 (ON HCJ), 69 O.R. (2d) 758, at p. 784.

VII. Divorce

102The applicant has filed an affidavit for divorce and a certificate of marriage. I am satisfied that there is no chance of reconciliation. The applicant has satisfied the test for a divorce. I would grant the divorce, but no Clearance Certificate is with the file nor draft divorce orders as contemplated by r. 36(4) of the Family Law Rules. The provision provides that:

(4) The court shall not grant a divorce until the following have been filed: [Emphasis added]

1. A marriage certificate or marriage registration certificate, unless the application states that it is impractical to obtain a certificate and explains why.

2. A report on earlier divorce cases started by either spouse, issued under the Central Registry of Divorce Proceedings Regulations (Canada).

103The applicant must also file the draft divorce orders mandated by r. 36(6) with the clerk.

104The documents may be directed to my attention if filed within 30 days of the date of this decision.

VIII. Disposition

105For the reasons above, I make the following final orders:

i. The respondent’s claim for spousal support is dismissed.

ii. The applicant may file the necessary documents affidavit and other information contemplated by r. 36 with the clerk. Service on the respondent is dispensed with. If filed within 30 days of this decision, the applicant may stipulate in a covering letter that the documents are to be directed to my attention.

iii. The respondent shall pay the applicant an equalization payment of $178,487.82, subject to paragraph (iv) below.

iv. The respondent’s liability to pay the applicant an equalization awarded in paragraph (iii) above, inclusive of the prejudgment interest to the date of this judgment as set in paragraph (v) below, shall be satisfied as set out in paragraphs (a) and (b) of this paragraph as follows:

a) The balance of the net proceeds from the sale of the matrimonial home in the amount of $151,126.43 shall be made payable to the applicant

b) The respondent’s pension plan with the Ontario-Registered Pension Plan for Employees of Intact and its Affiliated Co, Registration Number [XXXX]², administered by Sun Life Assurance Company of Canada, shall be divided at source in the maximum transferrable amount of $52,775, representing the balance of the equalization payment, plus prejudgment accrued since the date of separation as set out in paragraph (v) below. The parties shall sign all necessary documents to effect the transfer forthwith.

v. The applicant is entitled to prejudgment interest on the equalization payment from June 1, 2019, to date at a rate of 2% per annum in the amount of $25,413.74

106Counsel for the applicant may contact my judicial assistant within 30 days of the date of this judgment to schedule a virtual Chambers appointment to settle the terms of the judgment, if required. Otherwise, the judgment may be taken out over the counter, and the approval of the respondent is dispensed with.

IX. Costs

107The applicant is seeking his costs of the entire proceeding in the amount of $37,000.00. While brief submissions are made in the Closing Submissions, that is not sufficient. In my view, the respondent should also be given notice of the potential costs claimed against her and be afforded an opportunity to participate.

108The applicant relies on an offer to settle, and a copy of the affidavit of service is required.

109The respondent should have an opportunity to respond, and more fulsome costs submissions are required. The applicant’s Costs Submissions, exclusive of the offer to settle and Bill of costs, is limited to four pages, double spaced, and shall be served on the respondent and forwarded to the Trial Co-ordinator within 30 days of the release of this judgment. The documents must also be served on the respondent.

110The respondent shall have 30 days after the deadline for the applicant to serve his Costs Submissions to deliver any response.

111There shall be no reply costs submissions.

Footnotes

1. 1Exhibit 1, Tab 10.
2. 2To be redacted before publication