Court File and Parties
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: David Benchimol, Applicant AND: Hayley Benchimol, Respondent AND: Philip Macraz, Frances Macarz, Third Party Respondents
BEFORE: M. Kraft, J.
COUNSEL: Dani Frodis, Dahlia Windman, for the Applicant Lisa Baumal, for the Respondent Richard A. Cooper, for the Third-Party Respondents
HEARD: July 23, 2026
MOTION ENDORSEMENT
Nature of the Motion
1The respondent, Hayley Benchimol ("Hayley"), seeks an order requiring the applicant, David Benchimol ("David"), to repay $228,099 that he withdrew from the parties' joint Scotiabank line of credit ("joint LoC") on June 11, 2026. Hayley also seeks orders that David:
a. pay all interest accruing on the joint LoC from June 11, 2026, until the funds are repaid;
b. preserve the $228,099 withdrawn from the joint LoC;
c. preserve, and refrain from depleting, any property within his possession, control, or power;
d. be prohibited from making any further withdrawals from the joint LoC;
e. provide an affidavit explaining the withdrawal and tracing the disposition of the funds; and
f. serve and file an updated sworn financial statement.
2David opposes the motion and seeks its dismissal, with costs.
3Philip and Frances Macarz, Hayley's parents, are third parties to this proceeding. On May 15, 2025, they commenced a civil action against both parties’ seeking repayment of $1,012,538.61 they say was advanced by loan between September 2018 and October 2021 for the purchase and renovation of the matrimonial home. Although their counsel, Richard Cooper, attended the motion, the third parties did not participate or take a position.
4At a conference on July 2, 2026, Nakonechny J. made a temporary without prejudice order preserving the $228,099 and granted Hayley leave to bring this motion.
The parties’ positions on the motion
5Hayley submits that, through counsel, the parties agreed on November 24 and 27, 2023, that David would not access the joint line of credit ("joint LoC"). She argues that David breached that agreement when he withdrew $228,099 on June 11, 2026, without notice or her consent. Hayley further submits that David neither sought her agreement nor obtained leave, as required under the TSEF, before taking this step. She states that she was not informed of the withdrawal and only discovered it when the June 2026 account statements became available. Hayley argues that there is insufficient equity in the matrimonial home to secure her family law claims and therefore seeks an order requiring David to repay the withdrawn funds and preserve his assets pending resolution of those claims.
6David denies that any agreement prevented him from accessing the joint LoC. In any event, he submits that the $228,099 withdrawal represents approximately one-half of the available credit and therefore causes no prejudice to Hayley. He notes that Hayley has withdrawn nearly $60,000 from the joint LoC and argues that, when those withdrawals and the remaining available credit are considered, the parties are in substantially the same position. David further submits that he is paying, and will continue to pay, the interest attributable to the funds he withdrew. He argues that there is ample equity in the matrimonial home, which is listed for sale, to secure Hayley’s support and property claims. As the parties have already agreed that the net sale proceeds will be held in trust, he submits that no further preservation order under ss. 12 or 40 of the Family Law Act is necessary.
Conclusion
7For the reasons that follow, I order David to repay the $228,099 withdrawn from the joint LoC on June 11, 2026, and to pay all interest accruing on that amount until it is repaid. I further order that both parties preserve the joint LoC pending further agreement or court order. I decline to make any additional preservation or non-dissipation order in relation to David’s assets.
Background
8The parties married on July 17, 2012, in Toronto and have three children, aged 11, 9, and 7.
9The parties dispute the date of separation. David says they separated on April 27, 2023, when he moved out of the matrimonial home. Hayley says the separation date is May 14, 2023.
10The parties jointly own the matrimonial home. Hayley resides there with the children.
11The matrimonial home is subject to a mortgage and a joint Scotiabank line of credit ("joint LoC"), both registered on title. On David’s asserted date of separation, the mortgage balance was $768,131.26 and the joint LoC balance was $117,046.47. On Hayley’s asserted date of separation, the mortgage balance was $761,247.27 and the joint LoC balance was $134,656.04.
12At a case conference before Presser J. on April 24, 2025, the parties agreed to list the matrimonial home for sale and to hold the net sale proceeds in trust pending further agreement or court order.
13On May 15, 2025, Hayley’s parents commenced a civil action against both parties seeking repayment of funds they say were advanced by way of loan for the purchase of the matrimonial home and deferred rent. On January 27, 2026, I ordered, on consent, that the civil and family law proceedings be consolidated.
14In his statement of defence, David denies any indebtedness to Hayley’s parents. In her statement of defence and crossclaim, Hayley acknowledges the debt alleged by her parents and seeks contribution or full indemnity from David in respect of any judgment obtained against them.
15At a trial management conference before Nakonechny J. on March 9, 2026, a 14-day trial was scheduled to commence on May 10, 2027. The Trial Scheduling Endorsement Form ("TSEF") provides that pre-trial motions may be brought only with leave of the court.
Was there an agreement between David and Hayley about the joint LoC?
16Before retaining her current counsel, Lisa Baumal, Hayley was represented by Sheila Gibb from May 2023 to August 2024. David was represented by Lorne Wolfson until July 29, 2024, when Dani Frodis assumed carriage of his file.
17In November 2023, counsel exchanged without prejudice correspondence addressing several outstanding issues, including the matrimonial home and joint LoC. Hayley relies on that correspondence to establish the existence of an agreement. David disputes that any agreement was reached.
18On November 24, 2023, Ms. Gibb wrote to Mr. Wolfson seeking, among other things, confirmation that:
a. the $50,000 advance on equalization to Hayley would be paid from David's own funds and not drawn from the joint LoC; and
b. David would cease withdrawing funds from the joint LoC and repay amounts withdrawn post-separation, including withdrawals used to fund legal fees.
19On November 27, 2023, Mr. Wolfson responded. His answer to both requests was: "Agreeable."
20Although the parties did not subsequently execute an actual agreement, the correspondence establishes an agreement that David would no longer access the joint LoC. The agreement was clear and unambiguous. There is no suggestion that counsel lacked authority, or that the agreement was affected by mistake, misrepresentation, duress, or any other circumstance that would undermine its enforceability. Nor was it expressed to be contingent on the execution of a further document.
21At the time the agreement was reached, no litigation had been commenced. David did not commence this application until September 10, 2024.
22David argues that no binding agreement existed because the terms were never formalized in a separation agreement or court order. I do not agree.
23David acknowledges that, before November 2023, he had accessed the joint LoC to fund legal expenses and meet capital-call obligations related to his business investments. In June 2024, he repaid his share of the pre-separation line of credit balance.
24When Mr. Frodis was retained, he revoked all outstanding settlement offers made on David's behalf. He did not, however, purport to revoke any agreements previously reached between the parties (not that a party to a contract can unilaterally revoke it).
25It is significant that neither party accessed the joint LoC between November 2023 and October 2025. That two-year period is consistent with the parties' shared understanding David would not withdraw any funds from the joint line of credit.
26David submits that, even if an agreement existed, Hayley was the first to deviate from it when she withdrew $9,616.17 from the joint LoC on October 20, 2025. He notes that she did so without prior notice and that, since then, she has withdrawn a total of $59,612.01 to pay expenses associated with the matrimonial home. David argues that these withdrawals effectively required him to fund one-half of expenses that he does not necessarily accept are his responsibility. He further submits that, once Hayley accessed the joint LoC, he reasonably believed both parties were free to do so.
27Hayley disagrees. She submits that the November 2023 agreement specifically restricted David's use of the joint LoC and did not address her ability to access it. Based on the wording in the correspondence cited above, I agree. The correspondence contains no undertaking by Hayley and does not make David's obligation conditional upon her refraining from withdrawals.
28It may be that David's current counsel was unaware of the November 2023 correspondence or that David misunderstood the scope of the agreement. However, the agreement reached was straightforward: David would not access the joint LoC. If he wished to withdraw funds in June 2026, he could have sought Hayley's consent or obtained leave of the court. He did neither. Instead, he withdrew $228,099 without notice or consent.
29David justifies the withdrawal on the basis that Hayley had previously withdrawn approximately $60,000 and that sufficient credit remained available to her. Those considerations do not alter the agreement that had been reached.
30I reject David's position that the November 2023 correspondence did not result in a binding agreement.
31As set out in Fernicola v. Fernicola, 2022 ONSC 1041, at paras. 55 and 56, to determine whether the parties have reached a settlement, t Halpern v. Halpern, 2014 ONSC 4246, citing the Ontario Court of Appeal in Andrews v. Lundrigan, 2009 ONCA 160 and Ward v. Ward, 2011 ONCA 178, has set out three distinct lines of inquiry to consider:
a. Was there a “meeting of the minds” or consensus ad idem, that was manifest to the reasonable observers?
b. Was there a consensus on all of the essential terms of the agreement? and
c. Did the parties make the agreement conditional upon any other term, or subject to execution or a formal contract?
32The test is objective and the parties will be found to have reached a meeting of the minds where it is clear to the objective reasonable bystander in light of all the material facts that the parties intended to contract and the essential terms of that contract can be determined with a reasonable degree of certainty. (See Cook v. Joyce, 2017 ONCA 49).
33In the present case, I find that counsel, acting with apparent and ostensible, authority, agreed on behalf of his client that David would not access the joint LoC. The agreement was not conditional on any other term. The absence of a subsequent domestic contract or court order does not diminish the binding nature of that agreement. By withdrawing $228,099 on June 11, 2026, I am persuaded that David acted contrary to its terms. Save for exceptional circumstances, and unless relieved of the associated obligations, agreements reached by counsel must be respected and enforced. To determine otherwise would create chaos and prevent the orderly management of separations and adversely impact the administration of justice.
34David shall repay the $228,099 withdrawn from the joint LoC and shall pay all interest accruing on that amount from June 11, 2026, until repayment.
Should David be subject to a preservation order?
35In addition to seeking an order preserving the $228,099 after it is repaid to the joint LoC, Hayley asks that David be subject to a broader preservation and non-dissipation order over all of his assets and bank accounts. She submits that such an order is necessary to protect her property and support claims.
36David opposes the request. He argues that there is sufficient equity in the matrimonial home to satisfy any equalization payment, as well as any retroactive or ongoing child and spousal support obligations. He notes that the home has been listed for sale and that the parties have already agreed that the net proceeds will be held in trust pending further agreement or court order.
37Hayley submits that the available equity may be insufficient. She points to the claim advanced by her parents for repayment of funds exceeding $1 million that were allegedly loaned to the parties for the purchase and renovation of the matrimonial home. She notes that, in his financial statement sworn September 9, 2024, David disclosed a liability to the Macarz Family Construction Loan of $531,975.90 and attributed one-half of that debt, or $265,987.95, to himself. She also relies on correspondence dated March 24, 2025, in which David's counsel indicated that David would repay that amount. Hayley argues that, if her parents succeed in their claim and David disclaims responsibility for the debt, she could be exposed to the full amount.
38Section 12 of the Family Law Act permits the court to make an interim or final order restraining the depletion of a spouse's property where necessary to protect the other spouse's interests. The purpose of the provision is to ensure that assets remain available to satisfy any equalization obligation that may ultimately be found owing.
39Section 40 of the Family Law Act similarly authorizes the court to restrain the depletion of a spouse's property where doing so is necessary to protect a support claim from being impaired or defeated.
40In Popat v. Popat, 2021 ONSC 5194, the court summarized the principles governing preservation orders under s. 12 of the Family Law Act. In brief:
a. the purpose of a preservation order is to ensure that assets remain available to satisfy any equalization payment ultimately found owing;
b. a s. 12 order is not a Mareva injunction and does not require the same high threshold;
c. some evidentiary foundation is required beyond mere allegations;
d. any restraint should generally be limited to specific assets and supported by a prima facie claim to an equalization payment; and
e. the court must consider the likelihood of the claim succeeding, the balance of convenience, and the risk that assets will be dissipated before trial.’
f. Where entitlement and quantum are clear, those considerations may be determinative. Where the facts and valuations remain disputed, greater weight may be placed on the balance of convenience and the risk of dissipation.
41David estimates that any equalization payment owing to Hayley is approximately $85,000. Hayley estimates that it is approximately $181,000. David submits that, regardless of which figure is accepted, there is sufficient equity in the matrimonial home to secure Hayley's property claims.
42Hayley also claims reimbursement of $84,786.79 for David's share of post-separation carrying costs of the matrimonial home incurred between May 2023 and September 2025. David disagrees that he owes Hayley this amount and he has a claim for occupation rent.
43In addition, Hayley estimates that David owes at least $300,000 in retroactive child support, spousal support, and s. 7 expenses. David disputes those claims but has continued to make voluntary support payments since separation.
44Hayley calculates the net equity in the matrimonial home at approximately $1,297,000, assuming:
a. a sale price of $2.5 million;
b. less real estate commissions and legal fees of $143,250;
c. less mortgage indebtedness of $698,169; and
d. less the current line of credit balance of $359,161.
45Even accepting Hayley's highest estimates, David's potential liability would be approximately $564,786.79, consisting of:
a. an equalization payment of $180,000;
b. child and spousal support arrears and s. 7 expenses of $300,000; and
c. reimbursement of carrying costs of $84,786.79.
46On Hayley's figures, David's share of the net proceeds from the sale of the matrimonial home would be approximately $648,500. Accordingly, there is sufficient equity to secure her family law claims.
47Hayley nevertheless relies on the action commenced by her parents. She argues that, because she and David may be jointly and severally liable for that debt, her exposure could increase if David is ultimately found responsible for a portion of the claim but fails to satisfy it.
48David submits that the Macarz claim is unsecured and that the third parties neither participated in nor took a position on this motion. He argues that a preservation order should not be used to secure a disputed civil claim.
49I note that David has acknowledged liability for $265,987.95 of the amount claimed by the Macarz’s. The remaining disputed amount is approximately $240,296.36.
50Having ordered David to repay the $228,099 withdrawn from the joint LoC, substantially all of that disputed amount is effectively protected. On the evidence before me, any remaining potential shortfall is relatively modest. In addition, David has already advanced $50,000 to Hayley since separation.
51In these circumstances, I am satisfied that the existing protections, including the preservation of the joint LoC and the parties' agreement to hold the net proceeds of sale of the matrimonial home in trust, are sufficient. Hayley has not established the necessity for a broader preservation or non-dissipation order over David's remaining assets.
52The request for any further preservation or non-dissipation order is therefore dismissed.
ORDER
53This court makes the following order:
a. David shall immediately return, no later than 5 business days after the release of this Endorsement, the $228,099 he withdrew from the parties’ joint line of credit with Scotiabank, bearing account number 4538*****711, on June 11, 2026, at 12:41 p.m.
b. David shall pay all interest that has accrued on that portion of the Scotiabank joint line of credit and that continues to accrue until he repays the funds he withdrew described in a. above.
c. David shall preserve the entirety of the $228,099 that he withdrew from the Scotiabank joint line of credit until its return pursuant to ss. 12 and 40 of the Family Law Act.
d. Neither David nor Hayley shall be permitted to withdraw any funds from the Scotiabank joint line of credit without prior written consent or court order permitting a withdrawal.
e. If the parties cannot agree on costs of this motion, the respondent shall submit written costs submissions of no more than 3 pages, not including a bill of costs or Offers to Settle within 10 days of the release of this Endorsement. The applicant shall submit responding cost submissions in writing of no more than 3 pages, not including a Bill of Costs or Offers to Settle within 7 days of being served with the respondent’s costs submissions.
The Honourable Justice M. Kraft
Date: July 27 2026