E.L.R. v. D.M.S., 2026 ONSC 914
ONTARIO
SUPERIOR COURT OF JUSTICE
Overview
1This uncontested trial is, hopefully for these parties, the culmination of long and difficult litigation. The Applicant, E.L.R., is married to D.M.S. and the parties separated in early 2018. The Applicant’s parents, E.W.C. and E.C.M. are in their 70s and made substantial contributions to an agricultural enterprise on farm property purchased by them which was also their matrimonial home. They were added to this litigation in order to make claims against that farm property by way of unjust enrichment.
2E.L.R. and D.M.S. have a daughter, D.G.E., who is now an adult attending university. She is registered as a disabled person. The Respondent has refused to have parenting time with D.G.E. since January 7, 2019, and he abandoned his parenting claims in 2022.
3The parties have litigated the issues between them continuously for seven years. On July 26, 2024, I struck the Respondent’s pleadings after an 18-day “focused hearing” to address that issue among others. The pleadings were struck because of the Respondent’s failure to obey orders of Justices Jain and Eberhard for disclosure in this case. The Respondent appealed that decision to the Court of Appeal but failed to perfect his appeal in time. His motion to extend the time for perfection of the appeal was dismissed.
4In my July 26 endorsement striking his pleadings, I gave the Respondent an opportunity for “relief from forfeiture”: if he made the disclosure, he could come back to court to set aside the order to strike his pleadings. That motion was heard on April 30, 2025 and in my endorsement dated May 16, 2025. I dismissed the Respondent’s motion because he had still not complied with the disclosure orders in several important aspects. Again, D.M.S. went to the Court of Appeal and again failed to perfect his appeal in time. Again, the Court of Appeal refused his attempt to extend the time for the perfection of the appeal and dismissed his appeal, but not before he attempted to use the parties’ names without initialization. The Court of Appeal was forced to repeat Justice Kaufman’s order for initialization of the parties’ and child’s name which has been in place since the commencement of this matter.
5D.M.S. now owes costs which are in the hundreds of thousands of dollars due to his conduct during the focused hearing and because he has been unsuccessful throughout this litigation. Those costs have not been paid.
6This is an uncontested trial. The Respondent was not present and could not participate even if he was. Because this is an uncontested trial, the court must follow the following guidelines:
a. The relief requested must not go beyond the originating pleadings of the parties. The claimants are limited by their claims because the responding party would not otherwise have notice of those requests;
b. The relief requested must be supported by the facts and evidence as presented at the uncontested trial. The court cannot grant relief solely based upon the fact that it is unopposed by the Respondent.
c. The relief requested must be legally available to the Applicant.
7At the uncontested trial, the court received evidence by way of Form 23C Uncontested Trial Affidavits from the Applicant and the Added Parties. The Added Parties adduced no further evidence. The Applicant testified in aid of her Form 23C Uncontested Trial Affidavit (“Form 23C affidavit”); she also called her therapist, E.D.3 who testified concerning the Applicant’s claim for damages for intrusion upon seclusion.
Issues
8The issues to be addressed at this uncontested trial were as follows:
a. The Applicant’s claim for child support and spousal support;
b. The Applicant’s claim for damages for intrusion upon seclusion;
c. The Applicant’s claim for an equalization payment;
d. The Applicant’s claim for post-separation adjustments and costs;
e. The Applicant’s claim for a restraining order; and
f. The Added Parties’ claim for unjust enrichment and a share of the net proceeds of the matrimonial home and farm property presently held in trust.
9Because the Added Parties’ claim could potentially affect the equalization calculation for the parties (as they are claiming an interest in the Applicant’s and Respondent’s major assets, the farm property, and matrimonial home), I am going to determine their claims first in the litigation and then proceed to address the more complicated issues between the main parties to the proceedings, E.L.R. and D.M.S.
10For the reasons set out below, I have found the following:
a. The Added Parties are entitled to receive the remaining amount held in trust in respect of the farm property/matrimonial home as well as judgment against D.M.S. in the amount of $399,294.22, of which there remains owing and collectable $15,909.07;
b. The Added Parties shall have their costs against the Respondent fixed in the amount of $125,000;
c. Commencing December 1, 2025, the Respondent shall pay the Applicant ongoing child support including s. 7 expenses in the amount of $1,691 per month;
d. The Respondent shall pay the Applicant spousal support of $3,086 per month commencing December 1, 2025;
e. Arrears of support are fixed in the amount of $187,542;
f. Order to go vesting the Respondent’s shares in 1281645 Ontario Inc. in the name of the Applicant;
g. Taking into account the value of the shares in 1281645 Ontario Inc. the Applicant shall have judgment against the Respondent for an equalization payment, post-separation adjustments, damages for intrusion upon seclusion, and costs in the amount of $202,123.96; and
h. There shall be a restraining order against the Respondent preventing him from coming near to the Applicant’s residence, her place of business or from communicating with the Applicant.
Added Parties’ Claim
11The Added Parties, E.W.C. and E.C.M., are the Applicant’s parents, E.W.C. being the Applicant’s mother, E.C.M. her father. They have been present for most of these proceedings, participating in the arbitration before Arbitrator Perkins and then fully participating in this litigation, including the lengthy focused hearing before me as well as the relief from forfeiture motion. They have also been involved in the two appeals brought by the Respondent (now struck because of the Respondent’s failure to perfect those appeals) and have filed a Form 23C affidavit in support of their claims at this uncontested trial. They were present at the uncontested trial but did not give oral evidence.
12The Added Parties claim an interest in the farm property owned by the Applicant and the Respondent located at 151 Blue Mountain Road in Scugog Township, Ontario. The farm property sold in January 2019 for more than $1.1 million. A portion of the funds were released to the parties through a consent entered into by all the parties on May 23, 2019, and adopted as a consent arbitration award dated February 25, 2020, by Arbitrator Perkins.4
13As mentioned above, at this uncontested trial (unlike the focused hearing when E.C.M. testified), neither of the Added Parties testified. They relied upon E.C.M.’s Form 23C affidavit (adopted by E.W.C. in her own affidavit) and their counsel’s submissions. The facts relied upon by the Added Parties are complex and involved a business transaction including the purchase of two farm properties.
14The Added Parties say that they are partners in a business operated by the Applicant and the Respondent and that they made extensive contributions to the business and the properties entitling them to an equitable interest in the business. The Respondent denied that they were partners in that enterprise. The complexity of the facts surrounding the establishment of the business, the purchases of the real property, the Added Parties’ contributions to the business and the farm properties, and the subsequent partial distribution of funds, requires that these transactions be summarized in considering the merits of the Added Parties’ claims.
15The Form 23C affidavit confirms that in 1997, E.W.C. and E.C.M. were invited by the Respondent, then married to E.L.R., to participate in a partnership to grow shade trees for sale to municipalities. The business was known as “Urban Shade Tree Farms” (“USTF”). USTF was to be operated from a property at 285 Blue Mountain Road in Scugog Township. The Applicant and the Respondent purchased 285 Blue Mountain Road and moved into the residence on that property. The Added Parties sold their home on Lake Scugog but, due to municipal zoning restrictions, could not construct a second residence on the property and lived in a trailer at 285 Blue Mountain Road.
16E.C.M. says that he and E.W.C. were each 25% partners in USTF along with the Applicant and the Respondent. The provincial registration of that business confirms this partnership arrangement. E.C.M.’s counsel, in submissions, also pointed out that his clients’ partnership interests in USTF are confirmed in D.M.S.’s income tax returns filed over the years. E.C.M. says that he and his wife contributed funds on a monthly basis to the partnership account, which fluctuated but were at least $1,500 per month from 2002 onward. In the exhibit to his affidavit, he provides an accounting confirming deposits between 2002 and 2017 of $304,678.66 by E.C.M. and $314,677.51 by E.W.C. Considering the deposits of the Applicant and the Respondent to the partnership, E.C.M. says that he and E.W.C. overpaid in their contributions to the partnership by $16,678.86 and $26,677.51 respectively.5 E.C.M. says that the mortgage payments on 285 Blue Mountain Road were made through these partnership contributions. I make note of these contributions as context, however, these contributions do not form part of the Added Parties’ claim.
17E.C.M. also says that he and his wife contributed some $80,000 towards repairs and improvements on the residence at 285 Blue Mountain Road. It was unclear from the materials whether this was considered by them as part of or in addition to the partnership contributions noted above.
18In 2000, the neighbouring property at 151 Blue Mountain Road in Scugog came up for sale. For E.L.R. and D.M.S., it was obvious that they should purchase this property for USTF, as it had double the acreage and was twice the value of 285 Blue Mountain Road. Eventually, 151 Blue Mountain Road was purchased in the names of the Added Parties and the Applicant and the Respondent. E.C.M. deposes that the Applicant and the Respondent had insufficient resources to purchase 151 Blue Mountain Road and that the Added Parties paid the downpayment of $111,711 to purchase that property. E.C.M. says that this amount constituted one-third of the value of 151 Blue Mountain Road at the time of purchase. E.W.C. and E.C.M. also guaranteed the mortgage that E.L.R. and D.M.S. gave to the TD Bank on that property.
19In 2004, there was a land swap. E.W.C. and E.C.M. took title to 285 Blue Mountain Road in their joint names. E.L.R. and D.M.S. took title to 151 Blue Mountain Road together. In his Form 23C affidavit, E.C.M. says that:
At the time, DMS and ELR did not reimburse EWC and I with the initial 36% cash investment toward the purchase of 151 Blue Mountain. Instead ELR and DMS converted the funds to their personal use to purchase 161 Brock and the condo in Toronto.6
20It is unclear from the affidavit how much these converted funds were or whether there was a payment made by either party to the other in consideration of the land swap. Certainly, it is the evidence of the Added Parties that they did not receive back any of the funds that they advanced to the Applicant and the Respondent for the down payment for 151 Blue Mountain Road, which was the parties’ matrimonial home when they separated.
21E.C.M. says that they later re-mortgaged 285 Blue Mountain Road for $118,000, discharging the previous mortgage from their own resources. E.C.M. says that this sum was also advanced to E.L.R. and D.M.S.
22The Applicant and the Respondent separated in January 2018. A year later, in January 2019, 151 Blue Mountain Road was sold for $1,150,000 with the initial net proceeds of sale being $858,592.01. Of those funds, $477,000 were disbursed to the parties - $200,000 to D.M.S., $252,000 to E.L.R. and $25,000 to E.W.C. and E.C.M. There remains in trust some $358,385.15 plus accumulated interest.
23It is to be noted that E.L.R. admitted on the trial record the Added Parties’ narrative as contained in the Added Parties’ Form 23C affidavit. She has accepted the Added Parties’ offer to settle (D.M.S. did not) and consented to joint and several judgment against her for any shortfall in the amount found to be owing to them under the offer to settle.
24The Added Parties have claimed that they have a one-half interest in equity against 151 Blue Mountain Road, which they say is partnership property. They claim payment of $400,676.99 made up as follows:
a. Return of initial investment for down payment $111,711.00
b. One-half of net proceeds of the farm portion of 151 Blue Mountain Road7 $303,395.00
c. Pre-judgment interest $10,570.99
d. Less advance from trust ($25,000.00)
e. Total owing to the Added Parties $400,676.99
25The basis of the Added Parties’ primary claim against the farm property is in equity. They claim an equitable interest in the property at 151 Blue Mountain Road as set out above. Alternatively, they claim that the farm property is partnership property and that they are therefore owed one-half of the equity in the property as noted above.
26The Added Parties have suggested that they are entitled to the amount owing by way of a trust, presumably a constructive trust as against 151 Blue Mountain Road based upon a claim for unjust enrichment. The three elements to establish unjust enrichment are set out in Moore v. Sweet, 2018 SCC 52, [2018] 3 S.C.R. 303, at para. 37, as follows:
a. There has to be a benefit incurred on the respondents;
b. There has to be a corresponding deprivation to the claimant; and
c. There must be no juristic reason for the claimant having conferred the benefit to the respondent.
27There is no issue with respect to the first two parts of the analysis. The Added Parties conferred a clear benefit on the Respondents and the Added Parties further suffered a clear deprivation. By paying the down payment on 151 Blue Mountain Road, they enabled the purchase of that property which was later transferred to the Applicant and the Respondent in exchange for 285 Blue Mountain Road. It is clear from the evidence that 151 Blue Mountain Road was a larger property and more valuable than 285 Blue Mountain Road. And as stated in the Form 23C affidavit, the Applicant and the Respondent used the equity in 151 Blue Mountain Road for their own benefit, purchasing E.L.R.’s office property and a condominium in Toronto which was sold and the proceeds divided between E.L.R. and D.M.S. The court can easily find deprivation and benefit as required to establish unjust enrichment.
28The third part of the analysis, no juristic reason, is more problematic. The payment of the down payment was a partnership contribution and characterized as such by the Added Parties, who have stated that as an alternative, their claim may be supported as a fair division of the partnership assets which is how they have characterized that property. The Added Parties say that they relied upon the partnership to protect and ensure return of that contribution in the event that the partnership dissolved.
29However, even if the payment of the down payment can be characterized as a partnership contribution, the real issue is whether there was some other reason which would have justified the payment of the down payment by the Added Parties. Were they obligated at law to provide the contribution? : see Moore v. Sweet, at para. 63. Is there any evidence that they intended to loan or gift the down payment to the Applicant and the Respondent? Both those questions can be answered in the negative.
30First, the Added Parties were clearly not obligated at law to provide the down payment. If this was a partnership contribution, it was an extraordinary contribution. They were the only partners with the ability to raise the down payment; E.C.M. says that neither E.L.R. nor D.M.S. had the ability to raise that down payment or, for that matter, to qualify for the mortgage without the guarantee of the Added Parties. There was no obligation for the Added Parties to provide the down payment at law or under the partnership; they could have chosen not to pay the down payment and then the property would not have been purchased. They chose to for the benefit of the partnership and for the Respondent and their daughter, the Applicant, who ended up using the residence located at 151 Blue Mountain Road as their matrimonial home.
31There is also no evidence of a loan or agreement. There was no loan agreement or evidence of repayments for the down payment. There is also no evidence of the intention that the Added Parties intended to make a gift of the down payment (which the law in any event presumes against: see Pecore v. Pecore, 2007 SCC 17, [2007] S.C.R. 795). No reason is given for the land swap which resulted in 151 Blue Mountain Road being transferred to the Applicant and the Respondent in exchange for a property that was worth less. Based upon the evidence placed before me, I find that there is no juristic reason why the Added Parties conferred the benefit of the ownership of 151 Blue Mountain Road or the payment of the down payment by the Added Parties.
32The remedy for the Applicant’s and the Respondent’s unjust enrichment, however, differs in respect of the portion of the property that is being addressed. It must be recalled that the property at 151 Blue Mountain Road was used for two purposes. The Applicant and the Respondent used it as their matrimonial home and resided there together until they separated. However, that property was also purchased as partnership property for USTF to produce trees for sale to municipalities. D.M.S. treated the properties differently for tax purposes as he declared a taxable capital gain on the farm portion of the property, while the matrimonial home would not have attracted any tax consequences on account of its sale as it was a principal residence and exempt from capital gains. In his income tax return for 2019, the Respondent allocated 53% of the value of the 151 Blue Mountain Road (the whole of which was sold for $1,150,000) to the farm and business portion of that property (the “farm property”) and 47% to the residential portion (the “matrimonial home”). The Added Parties adopted this apportionment of the value as the Respondent could hardly complain about his own allocation for tax purposes in his income tax returns. For that reason, the court also adopts the Respondent’s own allocation of value for the purposes of imposing a remedy for the Added Parties.
33The two properties were held by the Applicant and the Respondent for different purposes and the remedy to be imposed differs with the purpose for which the property was used for. The matrimonial home was not part of the business and used for private residential purposes only. The farm property was used for USTF to produce trees and was purchased for partnership purposes.
34What then, is the appropriate remedy? The Added Parties ask for both a return of the down payment that they made as well as a one-half interest in the farm portion of the property to be imposed by way of a constructive trust. For the reasons which follow, I do not find in favour of both remedies. The only appropriate remedy concerning each portion of this property is the imposition of a remedial trust. The nature of the trust depends upon the portion of the property that the court is dealing with.
a. Farm Property
35Regarding the farm property, there is little doubt that a constructive trust can be imposed. For the court to find that to be a remedy, the court must find two things (again as set out in Moore v. Sweet, at para. 91):
a. That a personal remedy would be inadequate; and
b. The claimant’s contribution that founds the action is linked or causally connected to the property over which a constructive trust is claimed.
36Those are both established by the facts. Firstly, there is only one major asset left of D.M.S., which are the net proceeds of the sale which remain in trust. He has transferred the majority of his equity in the Brampton property that he owns with his partner to her. He owes substantial costs which have not been paid. A personal remedy is inadequate.
37Second, the contribution made by the Added Parties is clearly connected to the property giving rise to the net proceeds as they made the down payment enabling the Applicant and the Respondent to eventually receive title to the property.
38The claim for a one-half interest in the farm property only makes sense. The Added Parties were equal partners in USTF, and the farm property was partnership property which was purchased, presumably, to produce trees for sale to municipalities. They would have had an equal interest in that property within the partnership. They made substantial contributions to the acquisition and maintenance of the farm property. They are entitled to a one-half interest in the property by way of constructive trust and as quantified in the Form 23C affidavit.
39The Added Parties have requested payment of $303,395 being one half of the value of the farm property as attributed in D.M.S.’ income tax return. However, this does not take into account the mortgage on the property as outlined in the Statement of Agreed Facts (the “SAF”). That mortgage was in the total amount of $252,904.91. The 53% amount of that mortgage to be attributed to the farm property was therefore $134,039.60.
40The evidence is that there was no real estate commission on the sale of 151 Blue Mountain Road. The sale appears to have been private. There is no evidence as to the legal fees payable by the parties for the sale transaction. The lawyer’s trust statement and statement of adjustments were also not disclosed. I have to assume that the only deduction from the sale proceeds would be the mortgage noted above.
41I expect that the position of the Added Parties is that they should not have to take into account the mortgage as the Applicant and the Respondent had mortgaged the land to purchase properties in their own names. However, when the property was purchased, two-thirds of the purchase price was raised through a mortgage on the property. The facts seem to indicate that the Applicant and the Respondent only raised a further $80,000 by mortgage after the land swap. The claim that the Added Parties have is against the land which is represented by the net proceeds which continue to be held in trust.
42The net proceeds of the farm property are therefore $472,750.40.8 One-half of this amount is $236,375.20. That amount is to be paid to the Added Parties from the funds held in trust concerning the sale of this property.
b. Matrimonial Home
43The Respondent attributed the matrimonial home with 47% of the value of the 151 Blue Mountain Road property. This means that the home had a value of $543,210 of the net proceeds of sale. Again, there is the same mortgage to be accounted for. The portion of the mortgage to be attributed to the matrimonial home is 47% of the payout amount as set out in the SAF, which is $118,865.31. The net proceeds of the matrimonial home portion of 151 Blue Mountain Road are therefore $424,344.69.
44The division of that portion of the net proceeds was not addressed in the Form 23C affidavit. Instead, the Added Parties have simply requested a return of the down payment made on 151 Blue Mountain Road. That down payment was presumably on both the farm and the residential portions of the property and was $111,711. It is the evidence of the Added Parties that this downpayment was 36% of the purchase price of the property in 2000.
45One major concern relates to the claim that the Added Parties have made to both return their down payment and to impose a constructive trust on the farm property for a one-half interest in the property. They do not appear to relate that return of the down payment to the distinctive treatment of the matrimonial home but to an entitlement to its return as a remedy for their contribution to the purchase of the whole property.
46First, to request a return of the down payment is in effect to eliminate one of the major reasons why the court should find unjust enrichment. One of the major heads whereby the Added Parties claim unjust enrichment is through the payment of the down payment of $111,711. To return it to the Added Parties eliminates that deprivation suffered by the Added Parties. It eliminates a major ground whereby the Added Parties could be found to have a claim for unjust enrichment and would therefore deprive them of the remedy that they seek being an equitable one-half interest in that property. It also eliminates the connection linking the benefit to the Applicant and the Respondent to the net proceeds in issue. To give them back the down payment may be seen as fatal to the claim for unjust enrichment, as there is then no deprivation or benefit connected to the property.9
47It is instructive that, in Moore v. Sweet, the Ontario Court of Appeal had rejected unjust enrichment and ordered that insurance proceeds be payable to the Respondent (and not subject to a trust) subject to repayment of the premiums paid on the policy by the claimant: see para. 53. For the Ontario Court of Appeal, it was one or the other; either the claimant got her premiums back or the whole of the insurance proceeds. The Supreme Court allowed the appeal, finding unjust enrichment and a constructive trust. But they also never considered ordering both the insurance proceeds to be paid plus a return of the premiums paid by the claimant; she was only entitled to the proceeds of the insurance policy and no more. This was also the approach of the applications judge in that case, whose decision was ultimately upheld by the Supreme Court.
48By requesting both the return of the down payment and the one-half interest in the property, the Added Parties have confused the reason by which they are entitled to a finding of unjust enrichment providing them with an equitable interest in the property. They are not the same thing. The down payment was a major reason for their claim for unjust enrichment and there is little clarity on the benefit of the land swap as no evidence was given regarding the relative values of the two properties in 2004 when the land swap took place. To ask for its return then begs the question as to whether there is still a benefit and deprivation which would allow the court the ability to find unjust enrichment.
49However, the Added Parties are entitled to some share in the matrimonial home based upon the unjust enrichment finding made above. The down payment was made on the whole of the property including the matrimonial home. The Added Parties’ assistance in purchasing the property gave the Applicant and the Respondent as well as their child a stable residence throughout much of their cohabitation.
50It appears that, unlike the farm portion of 151 Blue Mountain Road, the matrimonial home portion of 151 Blue Mountain Road was not treated as partnership property by the parties. The matrimonial home was always addressed in a different manner than was the farm property portion of 151 Blue Mountain Road. In her net family property statement, this is evident in the Applicant’s treatment of the parties’ net family property. E.L.R. notes that the farm property is partnership property with each of the Added Parties and the Applicant and the Respondent equal 25% partners in that property. However, she notes that the matrimonial home was actually owned jointly by her and the Respondent. There is ample evidence that the matrimonial home must be addressed in a distinct manner from the farm property as addressed above.
51The Added Parties’ lawyer, in his factum, suggests that as an alternative, there is a remedy of a purchase money resulting trust interest. This is described in Bradshaw v. Hougassian, 2024 ONCA 425, at para. 8, as follows:
A purchase money resulting trust can arise “when a person advances funds to contribute to the purchase price of property, but does not take legal title to that property”: Nishi v. Rascal Trucking Ltd, 2013 SCC 33, [2013] 2 S.C.R. 438, at para. 1. There is a rebuttable presumption that the parties to the purchase “intended for the person who advanced the funds to hold a beneficial interest in the property in proportion to that person’s contribution”: Nishi, at para. 1. This presumption now applies to transactions involving parents and adult children: Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at para. 36.
52Dawe J. said that there must have been an intention at the time the purchase money was advanced that the claimant was acting as a purchaser of the property: see Bradshaw, at para. 11. Moreover, under Pecore, there is a presumption of resulting trust which arises when the money was advanced; the responding party has the onus to prove that the claimant did not intend to acquire a beneficial interest in the property: see Bradshaw, at para. 19. E.L.R. has not provided any evidence to rebut the presumption and D.M.S. has been removed from the litigation.
53The Added Parties state that the Applicant and the Respondent assured them that the down payment “was protected by our ongoing equitable interest in [151 Blue Mountain Road] which was in turn protected in our interest in the ongoing Farm partnership and later from the equity in the matrimonial home and other properties.”10 This suggests that the intention was that the down payment was intended to give them an equitable interest in the property. That evidence is uncontradicted.
54As stated above, the beneficial interest is in proportion to the claimants’ contribution to the purchase of the property. As the down payment was 36% of the value of the purchase price of the property, this would give rise to a further claim concerning the matrimonial home of $152,764.09.11 This amount is also payable from the trust funds held by the parties as this amount is again related to an interest in the property.
55In addition, the Added Parties request pre-judgment interest on the amount owing to them.
56This is in excess of the claim for the return of the down payment claimed in the Form 23C affidavit. However, that amount claimed is noted in the affidavit as a “minimum amount”. The basis of the claim as made out by the facts allows the court to impose an amount higher than that minimum amount.
c. Disposition re the Added Parties
57I have found that the amount owing to the Added Parties and to be paid from the funds held in trust (nominally in the name of the Applicant and the Respondent) is $389,139.29.12 Pursuant to her acceptance of the Added Parties’ offer to settle, the Applicant’s liability is limited to $308,500. Because the Respondent did not accept the offer, his liability is for the full amount owing, $389,139.29. As the amount held in trust is less than this, $358,385.15, the entire proceeds of the sale remaining in trust shall be released to the Added Parties. The Added Parties had previously received $25,000 from trust pursuant to the consent that was signed in arbitration in 2019 which means that they will have received from trust $383,385.15 in total.
58These funds should have been released long ago. The Added Parties note that D.M.S. had denied that there was a partnership, notwithstanding his declarations on his own income tax returns when it benefited him to do so. The claim for pre-judgment interest will therefore be granted in light of the fact that the funds have sat in trust since the closing of the sale of the matrimonial home and farm through no fault of their own. Pre-judgment interest has been calculated by the Added Parties’ solicitor as being $10,154.93.
59The total amount owing is therefore increased by the amount of pre-judgment interest to $399,294.22.
60Concerning the Applicant, her liability is limited by the offer to an amount less than that paid out of trust. The amount she owes was less than that which is to be released from trust to the Added Parties. There is no deficiency and no reason for a judgment against the Applicant.
61Respecting D.M.S., there is a shortfall of $15,909.07.13 D.M.S. is noted in default as his pleadings are struck. There shall be judgment against the Respondent for $399,294.22. Based upon the total amount paid or to be paid to the Added Parties of $383,385.15, there remains owing under that judgment the sum of $15,909.07.
E.L.R.’s Claims
62E.L.R. is the Applicant in this proceeding and her application discloses that she has made comprehensive claims against D.M.S. including child and spousal support and equalization of property. She has also made a claim in tort against D.M.S. for intrusion upon seclusion and a restraining order. The parenting issues were settled on consent during the litigation based upon advice from the lawyer for D.G.E. and, in any event, are no longer relevant as D.G.E. is now over 18 years of age.
63The issues that I need to consider to determine these claims, now uncontested, are as follows:
a. The respective incomes of the parties;
b. Retroactive and ongoing child support including s. 7 expenses for D.G.E.;
c. Retroactive and ongoing spousal support;
d. Medical and dental insurance;
e. Life insurance for the purposes of support;
f. Equalization of the parties’ net family property;
g. The post-separation adjustments owing to the Applicant;
h. Whether the Respondent is liable for the tort of intrusion upon seclusion;
i. If so, the quantum of damages for intrusion on seclusion;
j. The Applicant’s claim for a restraining order, including an order that the Respondent not be permitted to enter the town limits of the Town of Uxbridge;
k. Costs;
l. The Applicant’s ancillary order requests; and
m. Any remedies available to the Respondent (not dealt with specifically above).
64Again, I note that the Respondent’s pleadings have been struck. He is not permitted to lead evidence or further participate in these proceedings. However, the Applicant does not have carte blanche to request whatever she has asked for. She must provide evidence sufficient to for the court to make the findings that she has requested. Included in this evidence is the Form 23C affidavit that the Applicant filed. As well, the Applicant and her therapist, E.D., testified during the uncontested trial as to the trauma carried by the Applicant because of the disclosure of sensitive and private information that the court had previously directed not be disclosed.
65In any event, I will proceed to address the issues in the order noted above.
a. Respective Incomes of the Parties
66The Applicant makes claims for spousal support and child support against the Respondent. His income is crucial to the determination of support for obvious reasons. However, he has had his pleadings struck, in part, for his failure to make disclosure of his income in order to determine his income for support purposes.
67For this reason, along with others, the Applicant has asked for imputation of income to the Respondent beyond his declared income.
68The Applicant’s income is also relevant. This is because she has requested retroactive and ongoing spousal support as well as child support including extensive section 7 costs concerning D.G.E. Section 7 expenses are based upon a proportionate income ratio under the Child Support Guidelines, O. Reg. 391/97, and accordingly the parties’ incomes respective incomes must be determined. As well, the Applicant’s income is relevant to her claim for spousal support, again for obvious reasons.
69The incomes of the parties as set out in the Form 23C affidavit and based upon the Applicant’s financial statement are summarized in the chart below:
| Year | Applicant’s Income as Declared14 | Respondent’s Income as Declared | Proposed Imputation of Income to Respondent |
|---|---|---|---|
| 2018 | $89,000 | $191,89215 | $240,896 |
| 2019 | $92,000 | $144,17916 | $240,065 |
| 2020 | $101,000 | $148,16017 | $167,926 |
| 2021 | $119,853 | $185,93918 | $203,335 |
| 2022 | $116,487 | $166,61019 | $218,913 |
| 2023 | $124,664 | $173,35420 | $214,720 |
| 2024 | $79,270 | $170,36921 |
70The first issue to be reviewed in addressing child and spousal support is the income of the Respondent and imputation of income to him. Once this is done, the court can address base child support under the Child Support Guidelines after which the Respondent’s obligation for s. 7 expenses can be quantified. Moreover, once income is determined over the years, retroactive child support can be addressed.
71Spousal support can only to be addressed with reference to the court’s determination of the property, damages, and post-separation adjustments.
72The Applicant seeks imputation of income to the Respondent. She bases her claim on lack of disclosure by the Respondent (for which his pleadings were struck) and inconsistencies in what disclosure was provided. As far as I know, there has been no expert report quantifying the Respondent’s income, which he says was solely income from employment as reflected in his tax returns and Notices of Assessment shown above.
73It is without a doubt that the Respondent’s disclosure was and continued to be deficient even though the court provided him with a chance to provide his disclosure and set aside the order striking his pleadings. The Respondent’s pleadings were struck for failure to disclose as required by court order and those failures were not remedied. The Respondent’s appeals of my orders were dismissed when he failed to perfect his appeal withing the time limits prescribed by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
74Failure to disclose according to a legal duty to do so results in serious consequences. Firstly, under s. 19(1)(f) of the Child Support Guidelines, this permits a support claimant to request imputation of income to the non-disclosing party. The failure to properly disclose further results in the court having a wide discretion to draw an adverse inference against the putative support payor: see Montgomery v. Kenwell, 2017 ONSC 3107, at para. 8 and Manchanda v. Thethi, 2016 ONSC 3776, 131 O.R. (3d) 393, at para. 9.
75Moreover, there is normally a strict onus on the party seeking to impute income to provide a solid evidentiary foundation for the imputation of income: see for example Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, at para. 28. However, where there is a failure to disclose, this requirement is relaxed to some extent. This is for obvious reasons; where income disclosure is deficient it is difficult for a party to do anything other than speculate as to the income of the party failing to provide disclosure. It is unfair to expect a party to provide evidence of the payor’s income where that income information has not been provided: see Graham v. Bruto, 2008 ONCA 260, at para. 4.
76In the present case, the Applicant has provided evidence that the Respondent has unexplained and undisclosed expenditures and deposits of $364,228.65 since the parties separated. These expenditures cannot be explained by the income that the Respondent says that he made. The Applicant further provided evidence of undisclosed bank accounts and says that the evidence shows that the Respondent was involved in business activities through the activation of a domain name and merchant account for these businesses. Further, the Respondent has withheld his statement of business affairs from certain income tax returns and failed to provide his revised income tax return from 2018.
77Moreover, the Applicant says that the Respondent has unreported business income and relies upon evidence of business expenditures as noted above and admitted to by the Respondent. That income was not declared to the Canada Revenue Agency and must be grossed up for taxes: see the Child Support Guidelines, s. 19(1)(h).
78There is no actual explanation as to how the Applicant arrived at the figures that she seeks to impute to the Respondent as set out above. However, as noted, the lack of disclosure results in a necessary lack of exactitude in this exercise. The Applicant says that she calculated the imputed income from the Respondent’s disclosure but does not explain how she did this.
79I therefore find that income for the years since the date of separation should be imputed to the Respondent in the amounts requested by the Applicant.
80Moreover, I accede to E.L.R.’s suggestion that the Respondent’s ongoing income be based upon an average of those figures, in the amount of $214,720. In her affidavit in support of a 14B motion spoken to on January 13, 2026, E.L.R. says that the Respondent had misrepresented his income and that the life insurance available to him was evidence that his base salary had increased from the $125,000 per year that he originally disclosed. Ms. Cushon on her behalf said that this evidence was sufficient to increase the imputed amount of ongoing income beyond that which she had originally requested. However, no other amount has been suggested in the Applicant’s affidavit sworn on January 7, 2026. There are no suggestions as to what amount to increase the Respondent’s imputed income or as to how to calculate his income for ongoing child and spousal support. The Applicant’s request to adjust this imputed income amount is dismissed and the original suggested amount of $214,720 shall be used as the Respondent’s annual income for support purposes.
b. Retroactive and Ongoing Base Child Support
81The evidence supplied by the Applicant shows that D.G.E. is now attending university. She has diagnosed special educational needs. She began university in 2024 and is expected to take at least seven years to obtain a Bachelor of Arts degree.
82She remains a dependent. The Applicant has asked that ongoing base child support be assessed on a “summer only” formula, with the Respondent’s child support for the summer months being averaged through the full year. This would give rise, at $1,765 per month for four months at monthly base child support of $588 per month. This support amount shall commence January 1, 2026, and is based upon the Respondent’s income being imputed at $214,720.
83Regarding retroactive child support, the first determination has to be the date of separation of the parties. The Applicant asks that I find that January 15, 2018, to be the date of separation and that retroactive child support commence from that date.
84This was an issue that was addressed in a separation agreement dated January 28, 2018. That agreement provided:
[D.M.S.] told [E.L.R.] he wished to separate on November 2, 2017. The parties will agree upon the date of separation. If they cannot agree then they shall use November 2, 2017 as the default.
85During the focused hearing, D.M.S. sought to set that separation agreement (along with other agreements) aside. E.L.R. and the Added Parties advocated for this agreement. I dismissed the Respondent’s request to set aside the agreements.
86As I point out in the focused hearing endorsement, the agreement confirms that the parties did not agree on the date of separation. The Applicant is not inconsistent in requesting January 15, 2018, contrary to the agreement to use November 1, 2017, if the parties cannot agree. The Respondent’s pleadings have been struck and his agreement with the date is not in issue. The Applicant is free to request the use of January 15, 2018, as the date of separation and provide evidence of same; this in fact favours the Respondent as it results in a later start date for retroactive child support.
87Using the imputed income, the Applicant has calculated retroactive child support in a chart attached as Exhibit B to her Form 23C affidavit. This chart takes into account the child support that the Respondent actually paid and gives him a credit for some years. The Applicant deposes that the Respondent had misrepresented his income to Arbitrator Perkins resulting in an inadequate amount of child support payable for some years.
88The chart takes into account the child’s s. 7 expenses made up of her medical and dental expenses. Those medical expenses (and the largest portion of them) consist of psychotherapy expenses for the child, an amount that is clearly a valid s. 7 expense. She also claims medical expenses for D.G.E. which she has stated are uninsured; there is therefore no overlap between these expenses and the post-separation adjustment for the Respondent’s failure to reimburse medical expenses under his extended health and dental plan available through his employment. Moreover, there are now university expenses for D.G.E. which were $10,543 in 2024 and $15,898 in 2025. In 2025, the expenses were for accommodation only. There is also an annual amount for D.G.E.’s learning disability technology of $872 per year. All of these are valid section 7 expenses, and the Respondent is liable for his proportionate share. Based upon my income findings made in this uncontested trial and the determination of spousal support below, the proportionate amount of those expenses would be about 48.3%.
89I find that the Respondent owes retroactive child support (including s. 7 expenses) up to December 31, 2025, in the amount of $49,719. Arrears of child support are therefore set in this amount.
90For ongoing child support, the Applicant has requested base child support for the four-month summer period with s. 7 expenses being applied for the remainder of the year. This means that ongoing child support would be $606.00 per month based upon the Respondent’s income of $214,720. In addition, the Applicant requests s. 7 expenses for D.G.E. for the expenses noted above in a monthly amount of $1,085 per month. This is based upon the Respondent’s income as above and spousal support being paid in the high range as set out in the Applicant’s Spousal Support Advisory Guidelines (“SSAG”) calculation.22 This would commence December 1, 2025. So ordered.
c. Retroactive and Ongoing Spousal Support
91The Applicant requests retroactive and ongoing spousal support payable by the Respondent. According to her evidence, no spousal support, interim or otherwise, has been paid by the Respondent since the parties separated.
92The first issue is entitlement.
93The Applicant says that she was, in addition to her work obligations, mostly responsible for the raising of the parties’ daughter D.G.E. It is her evidence that the child has had special needs throughout the parties’ marriage. She notes that D.G.E. is a registered disabled person and has hearing and vision impairments. E.L.R. confirms that D.G.E. requires psychotherapy to address her trauma and the psychotherapist has confirmed the benefits of D.G.E.’s specialized schooling programs. Her learning disabilities mean that D.G.E. will take seven years to complete a four-year bachelor’s degree at university (where she has attended since September 2024).
94In all of this, the Applicant says that she has been largely responsible throughout the marriage of addressing D.G.E.’s special needs. E.L.R. says that this has impaired her earning capacity throughout the years and has reduced her income. She claims compensatory support. The evidence of the Applicant’s childcare responsibilities is uncontradicted and I find that she has a compensatory claim for spousal support.
95Moreover, the Applicant has suffered from illness throughout much of the marriage. In 2007, the Applicant was diagnosed with a rare form of cancer called cystadenocarcinoma located in her appendix. This spread to her colon and lymph nodes in January 2008, which required aggressive treatment as she was diagnosed as terminal. It is the Applicant’s evidence that this illness has also impaired her earning capacity and continues to do so as she has ongoing treatment and had further colon surgery in March 2023.
96The Applicant has also asked for support related to the stress caused by the Respondent’s aggressive litigation strategy, which she says has also affected her ability to earn income.
97The court finds that the Applicant has a both a compensatory and a non-compensatory entitlement to spousal support.
98The Applicant has filed SSAG calculations for the years since separation as well as for ongoing spousal support.23 She suggests that the highest range of spousal support be used under the SSAG.
99I have determined that the Applicant has a compensatory claim for spousal support. That claim can be characterized as being strong, considering D.G.E.’s special needs and the fact that the Applicant was largely responsible in dealing with those needs. The Applicant continues to address these needs and provides transportation for the child and assistance in D.G.E.’s post secondary education. This will continue to impair her career opportunities at least until the child completes her university education.
100The SSAG revised user guide confirms that “child support cases should more often resolve in the upper half of the range in the SSAG calculation.”24 This is especially so in the case of a special needs child: see Krause v. Zadow, 2014 ONCJ 475, and the SSAG revised user guide25. In fact, in Krause v. Zadow, Zisman J. suggested that the range of spousal support may go, in the case of a special needs child, beyond the upper range in the SSAG: see para. 82.
101Moreover, the user guide confirms that a strong compensatory claim results in the support being in the upper range:26 see Monahan-Joudrey v. Joudrey, 2012 ONSC 5984.
102Finally, as discussed below, the equalization payment in this matter is $20,164.70. It is relatively modest and, considering the Respondent’s transfer of his major assets into his partner’s name, will be difficult to collect.
103Because case law has suggested that the court could order an amount greater than the highest range of the SSAG, I accede to the Applicant’s request that spousal support be in the highest range. In light of D.G.E.’s continued dependency, support shall be indefinite subject to a review assuming that the Respondent brings the orders made in this proceeding, including costs awards, into good standing.
104The second issue is quantum. What retroactive spousal support is owing and what is the ongoing spousal support and duration?
105The Applicant has provided a chart of retroactive spousal support in her Form 23C affidavit and supported by DivorceMate SSAG calculations for the years between the date of separation (2018) to 2025.27 The chart respecting spousal support shows that there have been no payments of spousal support made since the parties separated. With a credit for s. 7 expenses paid, the amount owing for spousal support based upon the highest range of spousal support as of November 2, 2025, is $137,823. As the parties were in mediation fairly soon after separation and spousal support was an issue in that arbitration, the subject was broached early on28: see D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231. That amount will fixed as the amount of retroactive spousal support owing by the Respondent to the Applicant in this matter.
106As stated, the Applicant has both a compensatory and non-compensatory claim for spousal support. Ongoing spousal support shall be the amount of $3,086 per month being the upper end of the SSAG calculation in the Applicant’s materials. That provides the Applicant with 48.3% of the net disposable income of the parties. The spousal support is indefinite based upon the 22-year cohabitation of the parties and the calculations under the SSAG. Spousal support commences December 1, 2025.
d. Medical and Dental Insurance
107The Applicant has requested that she be named as beneficiary under the Respondent’s medical and dental plan (Greenshields) available through his employment.
108This has been an issue throughout this litigation. On May 23, 2019, the parties entered into Minutes of Settlement providing for advances to them of the net proceeds of the sale of the home. D.M.S. received $200,000, but also agreed that:
[D.M.S.] will ensure that [E.L.R.] and [D.G.E.] remain covered under his group health insurance plan. He has provided 10 blank signed claim forms and will provide more if needed. He will ensure that service providers who bill his insurer directly will continue to be able to do so. He will ensure that reimbursements of claims for [D.G.E.] and [E.L.R.] are deposited into the parties’ Scotiabank “gain plan” account. [D.M.S.] will make no withdrawals from that account, nor will he otherwise access the monies in it.
109D.M.S. sought, in the lengthy focused hearing, that this agreement be set aside. During his cross-examination by Mr. Goddard, nine days into the hearing, D.M.S. abandoned his claim to set aside this agreement. That agreement therefore remains valid and binding on the parties. It was made an arbitral award on consent by Arbitrator Perkins and was made a court order pursuant to s. 59.8 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), at the request of the Applicant and the Added Parties at the focused hearing.
110E.L.R. says that the Respondent breached this agreement and did not provide the coverage that he was obliged to under the Minutes. She says that D.M.S. has now removed her as beneficiary under the plan, which is difficult for her because of her own health issues. She says that D.M.S. closed the Scotiabank gain plan account that the funds were supposed to have been deposited. I find that the Respondent is in breach of this provision of the Minutes and of the court order made at the focused hearing.
111Although not a condition on the release of funds noted above, the obligation to provide medical and dental insurance to E.LR. and D.G.E. was “inextricably connected” to that release of funds: see para. 13 and 14 of that agreement.
112The employer, General Motors of Canada, was directed to provide details of the coverage for E.L.R. and D.G.E. and to provide direct coverage and payment for coverage on November 28, 2025. It is unknown as to the particulars of third-party disclosure of that coverage.
113The Applicant does not request return of the $200,000 from the Respondent pursuant to para. 13 and 14 of the Minutes of Settlement. She does request payment of amounts that were not provided to her and should have been under the coverage. She also requests that the order for coverage by Greenshields be made final.
114An order has already been made on November 28, 2025 on a final basis for direct coverage of E.L.R. and D.G.E. under the Greenshields plan. No further order is necessary to ensure coverage.
115The Applicant has stated that she has paid $31,480 in medical and dental costs that she says should have been covered under the May 23, 2019 agreement. Reimbursement of this amount by the Respondent to the Applicant shall be ordered as a further post-separation adjustment.
e. Support Life Insurance
116The Applicant requested in her Form 23C affidavit a final order that the Respondent provide support life insurance to secure his support obligations in the event of his untimely death.
117As with the Greenshields Insurance mentioned above, the issue of support life insurance was addressed by the final order made by me on November 28, 2025: see para. 3 of the order. The order is according to the wording requested by E.L.R. and was prepared by her for signature by the court.
118The Applicant provided a further affidavit indicating that she has now discovered that the Respondent’s life insurance has increased to $724,500. Apart from the increase in income suggested by this increase, the Applicant said that the wording in the order can be amended to take into account increases in the life insurance available to the Respondent. She has failed to provide that suggested wording in that affidavit. I decline to amend the order requested and granted on November 28, 2025 concerning the Respondent’s life insurance.
f. Equalization of Property
119The Applicant has filed a net family property (“NFP”) statement with supporting documentation in the Continuing Record in support of her equalization claim. She adopts this NFP statement and attachments in her Form 23C affidavit. According to that NFP statement provided, the Respondent owed the Applicant an equalization payment of $20,164.41.
120She later filed the same NFP statement with one change; she placed some jewellery and computer items that she says were stolen by the Respondent on her side of the ledger as she was the owner of those items on valuation day. This NFP statement effectively says that the Respondent owes only $14,141.98. That reduction would be presumably addressed by the adjustment of $6,000 requested in the Applicant’s Form 23C affidavit for the stolen items.
121I have reviewed the original NFP statement, and I find that the attached evidence adequately supports the property values noted in the statement. To order the lesser payment and then order a post-separation adjustment as requested has the same net effect. I prefer to take one step and order the larger equalization payment, placing the stolen items on the Respondent’s side of the ledger.
122Based upon the statement, it can be seen that much of the property is jointly owned. The one value omitted is the value of the shares in 1281645 Ontario Inc. However, the parties were, on the date of separation, joint shareholders in that business. Neither party has strayed into the negative in their net family property (which would result in a value of zero under the FLA). Therefore, that omission makes no difference to the amount of the parties’ respective NFP or to the equalization payment.
123The Applicant is entitled to an equalization payment in the amount of $20,164.41 as requested.
g. Post-Separation Adjustments
124The Applicant has requested post-separation adjustments to be paid to her in the amount of $51,364.46, calculated as follows:
a. Farmhouse and Condo Expenses: these expenses were outlined in Ex. F of the Applicant’s Form 23C affidavit. She has provided her brief of expenses for the jointly owned farm and condominium which accrued after the date of separation. She says that these expenses totalled $55,995.59 and the Respondent agreed to pay half of those expenses or $27,997.80. It is the Applicant’s evidence that he only paid $10,182.17. She is owed the balance of $17,815.63.
b. Enprosper Third Party Debts: According to the Applicant’s evidence, Enprosper was the Respondent’s consultancy business which had advertised legal services on the internet and had used the Applicant’s office address. In the January 2018 agreement, D.M.S. agreed to pay all expenses associated with Enprosper. The business was no longer in operation by the time the parties separated and the Applicant says that the parties’ accountant had been suggesting that it be wound down since 2016. After separation, this became essential because the business address remained the Applicant’s office. The Applicant says that she incurred costs of $17,030.04 which consisted of Enprosper third party debts of $12,395, personal expenses of $572.69 taken from the corporation’s business account by the Respondent, and accountancy fees for Enprosper of $4,062.35. In her January 7, 2026 affidavit, the Applicant says that, in addition, she incurred legal fees connected to winding up Enprosper of $3,760. All of these are to the account of the Respondent, whose business it was, and it was reasonable for the Applicant to have taken steps to wind down the business under the circumstances. The Respondent agreed to pay all of the expenses of Enprosper which would include, presumably, the costs of winding the company up if necessary. He did not pay those expenses, and the Respondent owes the Applicant a total $20,790.04 in post-separation adjustments connected to the winding up of Enprosper.
c. TD Visa and Mastercard: The Applicant says that she is owed $3,018.79 on payments that she made on the Respondent’s Visa. Those payments were presumably paid by her on that card pursuant to the January 28, 2018 agreement that provided that this card was to be used for household and personal expenses including D.G.E.’s expenses and would be paid by the parties jointly. E.L.R. says that D.M.S.’s cancellation of this card contrary to the agreement results in her being owed payments that she made on this card. She also says that the Respondent used her Mastercard for personal expenses, again contrary to that agreement. However, while the Respondent’s improper use of the Mastercard may attract reimbursement, the payments on the Visa lack proof that the payments went towards the Respondent’s personal expenses or was otherwise used improperly. She provides no evidence as to the actual use of either of these cards for the Respondent’s personal expenses or break down what her loss is concerning each of the cards. The cancellation of the card alone would not give rise to reimbursement unless there is a proven loss as a result. Otherwise, these expenses would be addressed through the reimbursement for household expenses or alternatively for the section 7 expenses of D.G.E. which is a separate claim by the Applicant. That request is denied due to lack of specificity.
d. Credit Facility: The Applicant says that D.M.S. wrongfully withdrew $7,500 from a credit facility related to 1281645 Ontario Inc. which owns the building which housed the Applicant’s law office. That is presumably a debt that the Applicant would have to cover as she operates that business and relied upon it to operate her practice. That post-separation adjustment is allowed.
e. Emergency Repairs: The Applicant says that the Respondent broke into the matrimonial home prior to closing, damaging the sliding glass doors and the furnace to the home. The repairs cost $1,782.58 as the home had to be repaired to complete the sale. The Applicant is owed a further $1,782.58 for this post-separation adjustment.
f. Two Rings and Computers: The Applicant asks for a $6,000 adjustment for these items that she says were removed from the matrimonial home by the Respondent during the break-in mentioned above. She says that these items were not accounted for in the equalization calculation. However, those items are included on the Respondent’s side of the ledger at a value of $12,000 in the Applicant’s NFP statement attached to the Applicant’s Form 23C affidavit. They are accounted for in the requested equalization payment that was increased by $6,000 by the inclusion of those items on the Respondent’s side of the ledger. To order a further $6,000 payable by the Respondent as a post-separation adjustment would result in the asset being placed on the Respondent’s side of the ledger which would reduce the equalization payment owed to the Applicant by a further $6,000. This adjustment is accounted for in the equalization payment and is disallowed.
125In addition to the above, I have determined that the Respondent pay the Applicant the sum of $31,480 in medical and dental costs that should have been reimbursed by the Respondent’s medical and dental plan. That is to be added to the $47,888.25 ordered above. Therefore, the Applicant is owed a total of $79,368.25 in post-separation adjustments.
h. The Tort of Intrusion Upon Seclusion: Is there an Actionable Claim?
126This is a claim that is made by the Applicant for damages in her application.
127The Applicant also asked in her Form 23C affidavit for damages for the tort of family violence. The issue of whether a cause of action lies under this heading is presently before the Supreme Court of Canada.29 However, this claim was not made in the application and cannot be considered in this uncontested trial.
128The tort of intrusion upon seclusion is a relatively recent tort claim and arises from Jones v. Tsige, 2012 ONCA 32, 108 O.R. (3d) 241, which confirmed that there is a claim in tort for the invasion of an individual’s privacy. To succeed, the claimant must prove three things:
a. That the Defendant’s conduct was intentional or reckless;
b. That the Defendant invaded, without lawful justification, the Plaintiff’s private affairs or concerns; and
c. That a reasonable person would regard the invasion as highly offensive and causing stress, humiliation or anguish.
129The sensitive nature of this matter has been recognized since the commencement of this litigation, when Kaufman J. made an order on November 17, 2020, requiring initialization of the parties to this proceeding and confirmed that the privacy interests of this matter would be infringed if it was addressed in the normal fashion in the Oshawa Family Court. He ordered the matter to be case managed in Barrie and that the trial in Oshawa be presided over by a Newmarket judge. This order was made because the Applicant is a practicing member of the family bar in Oshawa and her identity required protection because of reputational issues and the fact that this matter might have proven to be damaging to her because of her occupation.
130Even prior to this order and this litigation, the Respondent was well aware that the Applicant’s privacy concerns were essential to her professional standing and in ensuring a stable income for herself and D.G.E. That was described as one of the reasons that E.L.R. opted for arbitration rather than the court process. E.L.R. has provided evidence of D.M.S.’s breach of the confidentiality provisions in the arbitration agreement. When arbitration ended, D.M.S. was well aware of the privacy concerns of the Applicant and this was confirmed in Kaufman J.’s order noted above.
131The Respondent was always aware of these privacy concerns. However, he has been largely dismissive of the Applicant’s fears. He attempted to remove the initialization of the parties’ names when he brought this matter to the Court of Appeal; Trotter J.A. disagreed with him and dismissed his motion thereby confirming that the Applicant’s privacy concerns remained a live issue. D.M.S. told me during the focused hearing that he wished to have a finding of parental alienation against the Applicant even though he had abandoned his parenting claims in 2022. There is evidence in the Applicant’s Form 23C affidavit that the Respondent was disclosing to a parental alienation advocacy group the details of this litigation including, presumably, the Applicant’s identity. He finds it particularly egregious that the Applicant, as a practicing family lawyer, would have, in his mind, alienated D.G.E. from him. He has embarked upon a campaign to prove to whoever will listen that the Applicant has alienated his daughter, D.G.E. from him and accordingly to punish D.G.E. for this alienation. Where he could not succeed in the courts, he has resorted to public excoriation of E.L.R. for his perception that D.G.E. has been alienated from him. He has now continued the war and issued a lawsuit claiming damages for malicious prosecution and for alienation, publicly naming both the Applicant and his daughter as defendants in that case; although I decline to comment on the merits of that case (which is in its early stages), this might very well be seen as a continuation of the Respondent’s campaign to prove to the public the wrongs that the Applicant has, in his mind, committed against him.30
132Since these orders were made, the Applicant says in her Form 23C affidavit that the Respondent has infringed upon her privacy and seclusion wilfully and intentionally as follows:
a. He has sent emails and letters to family and friends accusing the Applicant of alienating D.G.E. from him. One example is an email sent to a mutual friend, Ashley Huang, on December 30, 2018, less than a year after the parties separated. That email states, amongst other things, that the Applicant had harmed D.G.E. through her efforts to alienate her from him, stating in that email:
You also know that [E.L.R.] is an experienced family lawyer and is therefore an expert on child alienation. She also knows its (sic.) child abuse. She has been applying her expertise to alienate [D.G.E.] from me.
She knows it will damage [D.G.E.]’s relationships with everyone in her future. This behaviour is just more of what I mentioned above.. winning every argument with extreme behaviour. In this case getting revenge on me by taking away [D.G.E.] from me. [D.G.E.] should not have to endure this. [D.G.E.]’s young persona will be permanently damaged by having to reject her loving father.31
b. He earlier shared on December 22, 2018, with Ashley Huang that the parties “were in arbitration (private court) a few days ago and it was pretty bad. [E.L.R.] presented affidavits from most of [D.G.E.]’s medical and educational providers against me. My lawyer described it as weaponizing [D.G.E.]’s school and health care providers.”32 This is clearly a breach of the arbitration agreement which provided that, “[t]he mediation and the arbitration are private and confidential, subject only to the record of the arbitration being produced in a judicial review or appeal as provided for in this agreement and except as may be necessary to implement or enforce an Arbitrator’s Award.”33
c. During the focused hearing, D.M.S. attempted to enter surreptitious recordings of conversations between the parties as evidence in that trial; the court spent more than a day in a voir dire concerning those recordings. It is the Applicant’s evidence that these recordings which were private in nature, were sent to tradespeople and contractors of the parties as well as employees at D.G.E.’s former school. From the hearing that I conducted, I can say that these recordings were embarrassing to the Applicant and picture her in a highly emotional state. They were not appropriate for sharing and were largely found to be inadmissible at the trial.
d. The Applicant says that the Respondent shared inappropriate details of the litigation with 13 members of court staff in Oshawa, Barrie, and at the Court of Appeal. The Applicant says that this was embarrassing information considering that she worked in the courts in Durham region and, at times, at the Court of Appeal.
e. The Applicant also says that the Respondent shared my reasons for judgment at the focused hearing dated July 26, 2024 with his own employer. There was no apparent reason why he would do this.34
f. The Respondent surreptitiously recorded D.G.E.’s reunification therapy sessions. These were not permitted to be used as evidence at the focused hearing and E.L.R. acknowledges that she has no evidence as to whether these recordings were shared with anyone. However, she notes in her Form 23C affidavit that these recordings are a “particularly serious and unacceptable invasion of privacy, both for D.G.E. and the reunification therapist.”
g. The Applicant says that the Respondent and his “supporters” have used social media to disseminate information about D.G.E. and E.L.R. including allegations that E.L.R. has alienated D.G.E. from him. He also published information on social media about the criminal trial in which D.G.E. was the complainant and which resulted in an acquittal of D.M.S. On September 15, 2019, he texted Samantha Kerr, who was a witness in the focused hearing, that “[E.L.R.] has poisoned many people against me, and people are afraid to even make a positive statement about me.. well they do not even responde (sic.). I have not seen [D.G.E.] in 110 days. I have not had access with her in 434 days.”35 E.L.R. also says that he has contacted other friends on social media to continue his allegations about alienation of D.G.E. Specifically, he contacted a friend of Samantha Kerr named Lance McDaddy, a stranger to the Respondent, to complain that Samantha Kerr had blocked him and that “I have not been with [E.L.R.] for over 850 days. [E.L.R.] is a senior family lawyer and has been blocking me from even getting into court.”36
h. E.L.R. also says that D.M.S. has posed as herself and as D.G.E. to both promote his campaign to prove alienation of D.G.E. and to financially harm E.L.R. She says that D.M.S. has posed as D.G.E. to advise of D.G.E.’s victimization from the efforts of the Applicant to alienate the Respondent. E.L.R. also says that the Respondent has closed his RESP account, resulting in taxable income to D.G.E. As well, E.L.R. says that D.M.S. has opened credit card accounts in her name or has placed charges on E.L.R.’s credit card. She has not specified any actual financial loss from the use of her credit card by the Respondent.
133All of these actions appear to be within the definition of the tort of intrusion upon seclusion as described in Jones v. Tsige. The are clearly intentional acts done with the knowledge of E.L.R.’s interest in preserving her reputation as a family lawyer in Durham region. They are all invasions of her privacy as part of an apparent and relentless campaign to prove that the Applicant had alienated the parties’ child, D.G.E., against him. They can all be seen as extremely offensive and, in light of the Applicant’s profession, harmful to her. This is particularly in light of the Respondent’s knowledge of the Applicant’s concerns, as placed before Justice Kaufman and as embodied in the arbitration agreement before that. I find that the Respondent has committed the tort of intrusion upon seclusion and is liable for damages as a result.
i. The Tort of Intrusion on Seclusion: Damages
134In her Form 23C affidavit, the Applicant’s damages are not quantified. However, she says that she is entitled to general, aggravated, and punitive damages. She also says that she lost two clients because of the Respondent’s actions in his wrongful public disclosure of private and embarrassing facts, although she did not quantify the fees lost.
135The Applicant’s lawyer, in her submissions at the uncontested trial, noted that the Respondent’s shares in 1281645 Ontario Inc. (previously vested in her name for preservation purposes) were valued as being worth $147,904 as of the date of separation.37 The business owns the building that houses the Applicant’s law practice and each party owned 50% of the shares, meaning that the total value of the business was therefore $295,808. E.L.R. asked for damages against the Respondent in this amount, to set off against the benefit of vesting the Respondent’s shares into her name.
136In her final submissions, the Applicant requested special, aggravated, and punitive damages in the amount of $200,000.38 She filed case law supporting this contention.
137Regarding the damages issue, other than the general information in the Form 23C affidavit, the Applicant called her therapist, E.D. to give evidence as to the trauma suffered by the Applicant because of the disclosure of private information. She was called as a participant expert, and her redacted CV confirmed her expertise and her ability to testify as to the Applicant’s prognosis and treatment.
138E.D. said that she has been providing counselling to E.L.R. on a weekly basis since August 22, 2023. E.D. confirmed that the release of private information by the Respondent was traumatizing to E.L.R. She says that the goals of E.L.R.’s therapy are, in part, concerned with supporting her through her fears of this matrimonial dispute with D.M.S. She has attempted to provide E.L.R. with the ability to regulate her emotions. She said that E.L.R suffered from guilt and shame as a result of the disclosure of the private information and found it difficult to carry on her profession as a family lawyer. She said that she treats the Applicant’s trauma through Eye Movement Desensitization and Reprocessing as well as treatment through “self-compassion.” Her prognosis is guarded, and she notes that the Applicant still suffers from panic at times. She predicts long-term therapy will be necessary to address the Applicant’s pain and trauma resulting from the dissemination of private information and this litigation.
139I have previously found D.M.S. to be a “querulous litigant”,39 which is defined as a litigant who does “not seek redress, but instead vengeance, public humiliation and punishment against those that oppose them”: see Olumide v. Alberta (Human Rights Commission), 2019 ABQB 186, at para. 56. The Respondent’s actions in releasing the Applicant’s information as well as that of D.G.E. confirms this. The fact that the Respondent wished a finding of parental alienation without making parenting claims as well confirms that there are collateral motivations on the part of the Respondent. This was not a practical exercise but, in fact, a vendetta against the Applicant.
140Although the Applicant has stated that she lost several clients due to the Respondent’s wrongful actions, she did not quantify her loss. She has not proven any special damages arising from the Respondent’s intrusion upon the Applicant’s seclusion into her business affairs.
141This is important because the leading case, Jones v. Tsige, the Court of Appeal determined that, in the absence of proof of pecuniary loss, general damages are limited to “moral” or “symbolic” damages. The court also stated that in egregious circumstances, aggravated or punitive damages may be awarded. Sharpe J.A. said, at para. 87, that “damages for intrusion upon seclusion in cases where the plaintiff has suffered no pecuniary loss should be modest but sufficient to mark the wrong that has been done. I would fix the range at up to $20,000.” He adopted the criteria for damages under Manitoba privacy legislation and stated that, in fixing damages, a court should have regard to:
(1) the nature, incidence and occasion of the defendant's wrongful act;
(2) the effect of the wrong on the plaintiff's health, welfare, social, business or financial position;
(3) any relationship, whether domestic or otherwise, between the parties;
(4) any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and
(5) the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.
142In Jones v. Tsige, the Defendant, as a bank employee, had accessed the Plaintiff’s bank records more than 170 times, possibly because the Plaintiff had entered into a common law relationship with the Defendant’s former spouse. The Defendant later apologized for her actions and the Court of Appeal awarded general damages of $10,000. Sharpe J.A. declined to award punitive or aggravated damages in that case.
143There have been other cases considering damages for intrusion upon seclusion and the general damages awarded have been modest. In Saulnier v. Postma, 2025 ONSC 3569, the Defendant had accessed the Plaintiff’s email accounts and damages were fixed at $8,000.
144In Patel v. Sheth, 2016 ONSC 6964, the Defendant had placed a surreptitious camera in the parties’ bedroom and damages were awarded of $15,000.
145In Chen v. Huang, 2025 ONSC 3406, the husband had accessed and used private emails between the wife and third parties. He used those materials in a settlement conference brief filed in the parties’ matrimonial proceedings. The court awarded damages of $5,000.
146However, higher awards have been awarded in other cases which were cited by the Applicant. In the former cases noted above, the damages were awarded, not because of the dissemination of the information but because of the actual “intrusion” upon the claimant’s privacy. Other cases have found that liability and damages flowed from the actual dissemination of information. The two principal cases that have dealt with this are Doe 464533 v N.D., 2016 ONSC 541, 128 O.R. (3d) 352 (“Jane Doe 2016”), and Jane Doe 72511 v. N.M., 2018 ONSC 6607, 143 O.R. (3d) 277 (“Jane Doe 2018”). In each of these cases, the defendant had published intimate videos of his partner on internet pornography sites. The elements of the cause of action, as set out in Jane Doe 2018, at para. 99, are as follows:
(a) the defendant publicized an aspect of the plaintiff's private life;
(b) the plaintiff did not consent to the publication;
(c) the matter publicized or its publication would be highly offensive to a reasonable person; and
(d) the publication was not of legitimate concern to the public.
147These cases were particularly egregious, especially concerning the nature of the breach of privacy and the way in which that information was used. These could be called “revenge porn” cases involving a level of malice and dissemination which deserved the full sanctions available at law.
148Because of this, the damages were much higher than the ranges discussed by Sharpe J.A. in Jones v. Tsige: see Jane Doe 2016 at para. 58; Jane Doe 2018 at paras. 127-132. The plaintiff was awarded general damages of $50,000, aggravated damages of $25,000 and punitive damages of $25,000 in Jane Doe 2016. The court awarded a total of $100,000 for the posting of the video ($75,000 in general and aggravated damages, and $25,000 in punitive damages) in Jane Doe 2018, at para. 146.
149In the present case, I am particularly concerned because the Respondent is intent upon proving to the world that his ex-wife, the Applicant, is guilty of alienating behaviour and yet practices law as a family lawyer. He finds this particularly offensive, and there is evidence that he is intent upon making this fact public notwithstanding being told time and time again by the courts that he cannot. Both this court and the Ontario Court of Appeal have identified the privacy concerns of the Applicant (and for that matter, their child) and have told D.M.S. not to publicly use their names in litigation. The fact that the Defendant disagrees with this is exemplified by his resistance to the motion for initialization of the parties’ names argued at the Court of Appeal. It may also be the reason why the Respondent has commenced a lawsuit for damages against both the Applicant and D.G.E., using their names and not their initials in that litigation (although again, I decline to comment on the merits of that case as that is an issue for another court at another time).
150I therefore believe that the circumstances of this case are particularly egregious for that reason. As well, the Applicant’s therapist has proven that the that the Applicant has suffered emotional harm as a result of the Respondent’s actions. In this litigation, he has surreptitiously recorded the parties, presenting those recordings at the focused hearing. He has breached the arbitration agreement which prevented publication of the details and results of the arbitration. He has attempted to publicly use the names of the Applicant and indeed did so in the lawsuit that he has now commenced in civil court. In all of this, he would have known the particular sensitivity of the Applicant to her name being publicly tossed about concerning the child-related issues and the harm that this would have caused her because of those sensitivities. It is trite law that you take your victim as you find them and that the perpetrator of the wrong is liable for any aggravated damages which may be suffered as a result of his actions.
151The limits of the general damages found by Sharpe J.A. in Jones v. Tsige have been eroded by inflation since that case was decided in 2012. I find that the Respondent’s actions are sufficiently egregious and malicious to attract both aggravated and punitive damages, and in particular the Respondent’s litigation behaviour in attempting to prove alienation of the child and make the Applicant pay for that. His intent at the focused hearing to have the court make a finding of alienation when he had previously withdrawn all of his parenting claims was particularly offensive. It is also evidence of his malicious intent in this litigation, which was to harm the Applicant rather than in obtaining justice for legitimate claims being placed before the court.
152I find that the Applicant is entitled to general damages in the amount of $15,000.
153In addition, I find that the Respondent’s behaviour was intended to cause the Applicant harm. The fact that it has caused harm is apparent from the testimony of the Applicant’s therapist noted above. One of the primary topics of that therapy is the breach of the Applicant’s privacy by the Respondent and it is concerning that the lawsuit may be sufficient to drive the Applicant over the edge. I find that the Applicant is entitled to aggravated damages of $30,000.
154Finally, the Respondent’s relentless campaign against the Applicant is something that must be discouraged through an award of punitive damages. His querulous litigation behaviour must be punished. There shall be an award of punitive damages in the amount of $30,000.
155Total damages are therefore fixed in the amount of $75,000. There shall be judgment against the Respondent in that amount.
j. Restraining Order
156The Applicant seeks a restraining order respecting herself and her adult daughter against the Respondent. Her request is for a restraining order in very broad terms, including a prohibition on the Respondent from entering the town limits of Uxbridge, the community in which the Applicant and her daughter reside. She says that this broad term is necessary because she does not want the Respondent to know her present address because she is afraid of him.40
157The basis for a restraining order for the Applicant rests upon both of s. 46 of the FLA and s. 35 of the Children’s Law Reform Act (“CLRA”).41 Reading from s. 35,42 the court may make a restraining order against a spouse or former spouse “if the applicant has reasonable grounds to fear for his or her own safety or for the safety of a child in his or her lawful custody.”
158The Applicant has outlined her reasons to fear the Respondent. Some of these circumstances are set out in the facts surrounding the tort of intrusion upon seclusion above. The Applicant also claims that the Respondent is guilty of family violence and continues his campaign against her to the present day. She points to a lawsuit recently begun by the Respondent for (apparently) malicious prosecution, naming as defendants the Applicant and the parties’ now adult daughter, D.G.E. The lawsuit did not initialize the names of any of the parties which supports the allegations of intrusion on seclusion earlier discussed in this endorsement.
159The evidence provided by the Applicant confirms that there was family violence against the Applicant during the marriage which was perpetrated by the Respondent. Her affidavit confirms that D.M.S. engaged in stalking behaviour and broke into the matrimonial home before closing, damaging the sliding doors and attempting to break into her office, damaging the front door. E.L.R. says that the Respondent followed her and her daughter and set up an account to “spoof” D.G.E. The Applicant also says that the Respondent engaged in threatening behaviour during the focused hearing, keying her car and crowding her when she arrived at the courthouse. She says that the Respondent has parked outside her office after midnight and damaged her security system with a drone. I have already outlined above where the Respondent breached orders and breached the Applicant’s and the child’s confidentiality during the appeal process. Unable to address alienation at the focused hearing, he has now started a lawsuit alleging alienation and malicious prosecution and using the Applicant’s and the child’s full names when he named them as defendants.
160I am satisfied that the Respondent has given the Applicant good reason to fear him within the meaning of both of the provisions in the FLA and the CLRA. There will be an order for a restraining order in this matter in favour of the Applicant.
161The Applicant has requested a restraining order in favour of her adult daughter as well as herself. The authorizing sections under the FLA and the CLRA provide that a restraining order is available to the claimant or a child “in his or her lawful custody”.
162D.G.E. is over 18 and an adult. The jurisdiction for a restraining order under the CLRA is pursuant to s. 35 which is in Part III of that statute. Section 18(3) of the CLRA provides that a reference to a child in that part of the Act “is a reference to the child while a minor.” D.G.E. is not a minor and is presently an adult. There is no jurisdiction under the CLRA to obtain a restraining order under Part III of the CLRA.
163Section 46 of the FLA is similar in wording to the provisions of s. 35 of the CLRA. Case law under that section confirms that a restraining order under s. 46 is similarly unavailable for an adult child: see Di Poce v. Di Poce, 2019 ONSC 4383.
164The request for a restraining order concerning D.G.E. is dismissed.
165The Applicant has requested a non-communications order. She also requested an order that the Respondent be prevented from entering the limits of the Township of Uxbridge.
166I have no difficulty in making the non-communications order. As well, although I was concerned that the Applicant’s claim to prevent the Respondent from entering the Township of Uxbridge was overreaching, the Applicant had asked for this because she did not want to disclose her home address to the Respondent. However, at the last hearing on January 13, 2026, the Applicant advised that the Respondent had located her as she was served with a Statement of Claim at her home. There is no need for the broad restriction, and I will make an order that the Respondent be prevented from attending at her home and her office or coming within 1000 metres of either address. Finally, by subsequent 14B motion, the Applicant has also requested an order preventing the Respondent from having access to this file on Case Centre. She says that the Respondent is relentless in his mission to prove and publicize the fact that the Applicant is a family lawyer and that she has alienated the child. She notes that, since the uncontested trial, the Respondent has commenced civil litigation without redactions, and naming D.G.E. as a defendant in that lawsuit. She notes that, for some unfathomable reason, the Respondent objected to the initialization of the parties’ and child’s name in the Court of Appeal so that a motion had to be argued; the Court of Appeal confirmed the Applicant’s and the child’s need for privacy.
167The Applicant is concerned that, if the Respondent has a right to access to the Case Centre file, he will use information filed in that file improperly in order to continue to intrude on the Applicant’s privacy. She says in her affidavit that the only way that she can prevent future breaches of privacy after this matter is finalized is to restrict D.M.S..’s access to the Case Centre file as part of the restraining order.
168I agree with the Applicant’s concerns. As I have noted above, the Respondent is an individual who appears to have a mission of disclosing the Applicant’s alleged alienation of his child, a crime that the Respondent sees as particularly egregious because of her profession as a family law lawyer. The privacy interests of the parties, including their adult child, have been addressed time and time again in this litigation and the Respondent strongly disagrees with the court orders made which were intended to protect the parties’ identities. He has commenced a civil action which discloses the identity of his daughter and the Applicant. Moreover, the Applicant’s therapist testified as to E.L.R.’s particular psychological vulnerability to breaches of her privacy interests. The courts have protected those privacy interests throughout this litigation; my concern is what comes next as this is a final determination of the issues in this protracted and difficult litigation.
169The remedy that the Applicant requests is, in effect, a sealing order, preventing access by the Respondent to this file. That remedy is available through a sealing order under s. 137 of the Courts of Justice Act, R.S.O. 1990, c. C.43 which confirms the open court principle permitting access to the contents of the court file subject to the following (s. 137(2)):
A court may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.
170Moreover, as parenting issues were placed before the court in E.LR.’s application, s. 70 of the CLRA is applicable. This section permits wide discretion to the court to limit access to the file by the court and court employees, the parties and counsel, and the children’s lawyer. In addressing this question, the court is to consider “the nature and sensitivity of the information contained in the documents… that appear in the court file” and “whether or not making the order could cause physical, mental or emotional harm to any person referred to in those documents”: s. 70(2).
171Even though the parenting issues are settled and D.G.E. is an adult, s. 70 provides jurisdiction for a privacy order. That is because the section is applicable where there are parenting claims contained in the original application: the section states that an order can be made where “the proceeding includes an application under this Part” and E.L.R.’s application requests a parenting order. Moreover, the Respondent also made parenting requests and continued to ask for a finding of alienating behaviour even though he had abandoned his parenting claims. He has now sued both the Applicant and his child and failed to initialize their names in his Statement of Claim. Section 70 is applicable in this case to both the Applicant and D.G.E. who have privacy interests to protect and have had privacy concerns throughout. Importantly, s. 70(2)(b) permits the court to protect the privacy interest of “any person referred to in those documents”. This would include the child even if she is an adult.
172The Applicant requests that I limit access to the court file in order to protect her privacy and the privacy of D.G.E. In submissions, she suggested that this order be ancillary to the restraining order to protect the privacy of herself and the parties’ daughter.
173I am extremely concerned about the motivations of the Respondent in this proceeding. He is apparently intent upon demonstrating that the Applicant is guilty of alienating his daughter’s affections and in making this information public. His actions have demonstrated this in this litigation. This file has numerous documents containing sensitive and confidential information. I share the Applicant’s concerns that, once a final order has been made, the Respondent may be tempted to use the contents of this file to share confidential information about E.LR. and her daughter.
174D.M.S. is no longer a party and I understand that his invitation to Case Centre has been withdrawn. Moreover, as there are parenting claims in this matter, D.M.S. is subject to r. 1.3 which prevents a non-party from having access to the file without notice being given to the Applicant. Even if this provides some protection, I am ordering that this Respondent not be permitted access to the contents of the file or the file on Case Centre. I have jurisdiction to do so as both s. 36 of the CLRA and s. 46 of the FLA permit the court to make an order containing “any other provision that the court considers appropriate.” Those sections allow me to make an order sealing the file under both s. 137(2) of the Courts of Justice Act and s. 70 of the CLRA.
175I am also going to seal the court file so that no designate can obtain copies of the documentation in this court file.
176I realize that this order offends against the open court principle. However, as stated in Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 SCR 75, at para. 35, this principle may take second place to privacy interests where the Applicant has demonstrated that “the information in the court file is sufficiently sensitive such that it can be said to strike at the biographical core of the individual and, in the broader circumstances, that there is a serious risk that, without an exceptional order, the affected individual will suffer an affront to their dignity.” My review of the evidence convinces me that the privacy interests of the Applicant and the child are at risk if the Applicant is able to access the file and publish the sensitive information contained in the file.
177If D.M.S. needs access to the court file for legitimate purposes, such as an appeal, he may bring a motion under s. 70(4) of the CLRA for same on notice to the Applicant.
178The terms of this restraining order will be set out in the restraining order endorsement filed and released with this endorsement.
179The restraining order shall be imposed for an indefinite term, subject to a review in three years if there have been no breaches of the order.
k. Costs
180Both the Added Parties and the Applicant have requested costs. Any costs ordered would have to be in addition to the costs already ordered for the focused hearing as well as the costs ordered by the Court of Appeal. I would expect any costs submissions to segregate the costs requested from those already ordered.
181The Added Parties’ Form 23C affidavit requested costs, but did not include a Bill of Costs or details as to the costs that they are requesting. On December 5, 2025, the Added Parties filed Costs Submissions along with their offer to settle and a Bill of Costs.
182The Added Parties filed an offer to settle served on the Respondent and the Applicant on April 21, 2022. It offered to settle the Added Parties’ claims by way of a judgment in the amount of $308,500. The amount owing would be firstly satisfied from the funds held in trust and, if there was a deficiency, by judgment. The Added Parties confirmed that the Applicant had accepted this offer. The Respondent did not.
183In this endorsement, I found that the Added Parties were owed $389,139.29. The entire amount held in trust was to be paid to the Added Parties with the remaining amount owing to the Added Parties and enforceable by execution.
184The Added Parties have been wholly successful, and they provided an offer under r. 18 of the Family Law Rules, O. Reg. 114/99. The offer was more beneficial to the Respondent than this judgment. Under r. 18, the Added Parties are entitled to costs on a full recovery basis from the Respondent from the date of the offer. They are not seeking costs against the Applicant.
185The Added Parties filed costs submissions. They cite the fact that the Respondent is guilty of unreasonable behaviour and state that, based upon that alone, they are entitled to full recovery costs: see r. 24(12)(a).
186I have commented about the Respondent’s unreasonable behaviour in previous costs decisions in this matter. The Respondent was unreasonable in his behaviour during the focused hearing, but that is not in issue as those costs have been previously addressed. His failure to properly disclose his financial information was also unreasonable, but that ship, too, has sailed.
187However, I have reviewed the Respondent’s offers to settle. All of them contained the same provision concerning the Added Parties, which was that their claims would be withdrawn or dismissed. The offers assumed total success against the Added Parties, and they were non-severable which meant that the offer had to be accepted by both the Added Parties and the Applicant. It is correct that the Respondent’s offers did not contain any sort of spirit of compromise as required by Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519. These “scorched earth” offers and the lack of severability of the offers constitute unreasonable behaviour.
188Moreover, the Respondent acknowledged the partnership in his income tax returns while denying its existence during the litigation. He picked and chose the facts that suited him best. He transferred the majority of his equity in his home to his partner, thereby making most of his assets judgment proof. He insisted upon publicizing the names of the Applicant and the parties’ daughter, thereby depriving them of the privacy they both deserved. I agree that the costs of both the Added Parties and the Applicant were increased substantially by the Respondent’s litigation behaviour throughout.
189I have already ordered costs of $201,500 in favour of the Added Parties; the majority of these costs are in respect of the focused hearing and the motion by the Respondent to reinstate his pleadings. The Added Parties say that they are owed a further $173,355.73 in full recovery costs as incurred for work done outside of those events.
190I have confirmed that the Bill of Costs has carefully excluded those costs previously awarded. However, the Bill of Costs filed by the Added Parties does not segregate out the costs that were incurred after the offer and before. It is impossible to determine the full recovery costs owed after the offer was served and before. The court is unable to make a ruling based upon r. 18(1) which requires the court to determine costs after the offer and before.
191I take into account, however, the fact that the Added Parties served an offer which was bettered by their result at this uncontested trial. I also take into account the unreasonable behaviour of the Respondent in the conduct of this litigation, especially his unwillingness to compromise as indicated by his offers to settle, none of which were better than the result and which were, realistically, incapable of being accepted.
192I find that the Added Parties are owed $125,000 in costs by the Respondent in addition to the costs previously ordered by this court.
193Regarding E.LR.’s claim for costs, this is set out in her Form 23C affidavit.
194The Applicant has requested, as far as I can determine from her Form 23C affidavit and the factum, the following costs which she says that she has either paid to her lawyer or to Arbitrator Perkins:
a. Costs of $333,122 between March 2018 and January, 2022 including $320,707.09 in legal fees, $11,639.01 to Arbitrator Perkins, $228 to Barbara Fidler and $550 to Hilary Linton. E.L.R. says that much of this was concerning the parenting claims concerning D.G.E.;
b. Costs of $82,910.60 paid to her lawyer and Arbitrator Perkins concerning the financial issues between the parties.
195There were other costs mentioned but nowhere are these costs quantified in any way.
196Perhaps because E.L.R. is a client who is making a costs claim, I was not given the benefit of the Bill of Costs of her lawyers. All that I have are statements as to what was paid to her lawyers, the arbitrator screeners for domestic violence (Hilary Linton and Barbara Fidler), and the arbitrator. Importantly, unlike the Added Parties who segregated the costs that they were claiming for the proceedings, there is no evidence as to the overlap of costs for the focused hearing, the motion, and the costs claimed in the Form 23C affidavit. However, if it is correct that the costs mentioned in para. (a) above were incurred between March 2018 and January 2022, it is a safe assumption that those costs do not overlap the costs previously awarded by me in this matter.
197The Applicant points out that the amount of costs that she has incurred are similar to those cited by the Respondent who says that he paid over $400,000 in costs. She says that this is evidence of the reasonableness of the costs.
198The Applicant says that the settlement of the parenting issues by the Respondent was not as favorable to him as the offer that the Applicant made on the parenting issues. I do not have that offer and I cannot comment on that statement.
199The Applicant also says that the Respondent acted in bad faith by not making disclosure. That was found to be unreasonable behaviour and relates more to the focused hearing than the costs claimed by the Applicant.
200The Applicant claims a total of $416,032.60 in costs. I do not have evidence as to how these costs were incurred or of the offer to settle. I also have not been provided by the solicitor’s accounts that the Applicant paid which might have provided evidence as to how these costs were incurred. I agree that the Respondent was poorly behaved, but I also do not have sufficient material to assess costs of the amount claimed properly. I have little clarity as to the basis of the Applicant’s claim for costs.
201The Applicant spoke of her offer to settle the parenting issues. I was not provided with a copy of that offer.
202I am going to order partial recovery costs for these proceedings of $175,000 to the Applicant payable by the Respondent.
l. Ancillary Orders
203The Applicant has requested a number of orders in aid of execution of the terms of this judgment.
i. Vesting Order
204The Applicant has requested that the vesting order made by me on October 30, 2025 be made final. This was an order vesting the Respondent’s shares in 1281645 Ontario Inc. in which the Applicant and the Respondent have equal shares. On October 30, 2025, I ordered that the Respondent’s shares be vested in the Applicant by way of preservation of property.
205The shares of each of D.M.S. and E.L.R. have been valued as being worth $147,409. The value of the shares is representative of the net value of the building in which the Applicant’s law office operates out of.
206The Applicant is owed a substantial amount of funds under this judgment and under previous costs awards. There is jurisdiction to transfer property in equalization proceedings under s. 9(1)(d) of the FLA and the shares are in the company holding title to the Applicant’s law office. The shares shall be vested in the name of the Applicant to be credited against the monies owing by the Respondent to the Applicant in this proceeding.
2. Order Under Fraudulent Conveyances Act
207The Applicant seeks to set aside the conveyance of a portion of his equity in his residence to his partner, Wendy Baker.
208That is a claim under the Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, and the Applicant says that the conveyance was made with the intention of defeating the claims of the Respondent’s creditors, including the Applicant.
209This claim was not made in the Applicant’s Application. As well, Wendy Baker, who is an interested party as she now owns the equity in that townhouse, was not served with this claim or the uncontested trial material.
210That request to set aside the conveyance to the Respondent’s partner cannot be made without notice or without the Application being amended to include this claim. Further, it is not ancillary to the enforcement of the Applicant’s judgment; it is a claim that stands on its own. The claim is therefore dismissed without prejudice to being returned when properly brought before the court.
3. Variation of the Endorsement of September 11, 2024
211The Applicant says that she has been harmed by the findings in that endorsement where I expressed concern about disclosures to the Respondent’s employer of the sexual assault charges which were eventually dismissed by the Ontario Court of Justice.
212This is a motion, effectively, under r. 25(19) of the Family Law Rules which allows the court to correct a “mistake” in the endorsement. However, that endorsement was made when the Respondent was still involved in this litigation. If a motion is to be brought under r. 25(19) to change that endorsement, notice should be provided to the Respondent despite the fact that his pleadings have been struck. The request is therefore dismissed without prejudice.
Calculation of Amount Owing
213There are support arrears owing to the Applicant for base child support, section 7 expenses, and spousal support. These would become arrears owning and collectable through the Family Responsibility Office and calculated as follows:
a. Arrears of child support (including s. expenses): $49,719.00
b. Arrears of spousal support $137,823.00
c. Total arrears $187,542.00
214There is also to be a judgment for the amounts owing for post-separation adjustments, damages, equalization, and costs. Credited to these amounts is the value of the shares in vested in the Applicant’s name which were valued at being worth $147,409. Therefore, the amount of the judgment would be calculated as follows:
a. Equalization payment: $20,164.71
b. Post-separation Adjustments: $79,368.25
c. Damages for intrusion upon seclusion $75,000.00
d. Costs $175,000.00
e. Subtotal $349,532.96
f. Less value of shares vested into the Applicant’s name: ($147,409.00)
g. Total judgement: $202,123.96
Order
215There shall be a final order as follows:
a. The amount held in trust by Turner, Winter on account of the sale of the farm property and the matrimonial home shall be released in full to the Added Parties.
b. There shall be a judgment against the Respondent in favour of the Added Parties in the amount of $399,294.22 of which there remains owing and collectable $15,909.07.
c. The Added Parties shall have their costs against the Respondent fixed in the amount of $125,000;
d. Commencing December 1, 2025, the Respondent shall pay the Applicant ongoing child support in the amount of $1,691 per month calculated as follows:
i. Base child support of $606; and
ii. Section 7 expenses, including the child’s university expenses of $1,085.
e. The child support is based upon the following factors:
i. The Respondent’s income is found to be $214,720;
ii. There is one child of the marriage;
iii. The child lives with the Applicant for only the summer months and support is calculated on the basis of base child support of $1,818 per month averaged over the 12 months of the year;
iv. There are section 7 expenses including post-secondary university expenses in the amount of $23,135; and
v. The Respondent is responsible for 51.7% of those section 7 expenses, taking into account spousal support payable under this judgement.
f. The Respondent shall pay the Applicant spousal support of $3,086 per month commencing December 1, 2025;
g. Spousal support is of indefinite duration, subject to a review if the Respondent brings the orders made in this proceeding, including costs awards, retroactive support, and the judgment below, into good standing.
h. Support arrears owing to the Applicant are fixed at $187,542 comprising the following:
i. Arrears of child support in the amount of $49,719; and
ii. Arrears of spousal support in the amount of $137,823.
i. There shall be a final order pursuant to s. 9(1)(d) of the Family Law Act vesting the Respondent’s shares in 1281645 Ontario Inc. in the name of the Applicant.
j. The Applicant shall have judgment against the Respondent for an equalization payment, post-separation adjustments, damages for intrusion upon seclusion, and costs in the amount of $202,123.96.
k. There shall be an order prohibiting the Respondent access to this file or Case Centre and the file shall be sealed.
l. There shall be a restraining order against the Respondent in favour of the Applicant in the terms set out in the restraining order endorsement signed by me and issued with this endorsement.
Justice J.P.L. McDermot
Released: March 25, 2026
Footnotes
- Amended on Feb. 13 at the request of the applicant and on consent of the added parties.
- Amended on Mar. 25 at the request of the applicant and on consent of the added parties. Para. 215 e.i now says: The Respondent’s income…
- E.D. asked that her name be initialized, and her identity protected due to her fear of the Respondent. She based this on what she has been told by E.L.R. and there is no evidence of direct contact between E.D. and D.M.S. Based upon the allegations of the Applicant, I allowed her to protect her anonymity for those reasons.
- D.M.S. had brought the focused hearing, in part, with a view to setting this award aside. Nine days into that hearing, he abandoned the claim to set aside that consent award, in part because he had received $200,000 under that award which he might have had to return if the award was set aside.
- It is to be noted that the accounts supplied also indicate that E.L.R. overpaid in her contributions to the partnership by $68,477.59 and that D.M.S. underpaid by $45,700.42.
- Form 23C affidavit of E.W.C. sworn November 25, 2025, at para. 31. The properties referred to in that paragraph are the building in which the Applicant’s law office was located (161 Brock Street) and a residential condominium in Toronto used by the Respondent when he was working in the city.
- The total net proceeds were more than $1,000,000. The Added Parties state that the Respondent had declared to the Canada Revenue Agency that the farm property portion of the net proceeds of 151 Blue Mountain Road was 53% of the value of the sale proceeds of the property which was, for tax purposes, $606,790. One half of this amount would be $303,395. This would leave $543,210 or 47% of the sale proceeds allocated to the matrimonial home located on that property.
- $606,790.00 – $134,039.60 = $472,750.40.
- I am cognizant of the fact that there was a later payment of $118,000 to the Applicant and the Respondent from a mortgage placed by the Added Parties on 285 Blue Mountain Road. There is no evidence as to whether these funds were used to improve 151 Blue Mountain Road or as to how these funds were used.
- Added Parties’ Form 23C affidavit, at para. 32.
- The net equity in the matrimonial home was $424,344.69 and 36% of that amount is $152,764.09.
- $236,375.20 + $152,764.09 = $389,139.29.
- $399,540.08 - $383,385.15 = 15,909.07.
- E.L.R.’s income for 2018, 2019, and 2020 can be determined with reference to the Income Report prepared by Steven Ranot and filed on the continuing record and attached to his affidavit sworn on June 17, 2021. That report includes Mr. Ranot’s CV and his acknowledgment of the expert’s duty as required by the Family Law Rules. The report has two scenarios, but I have used the scenario attributing one half of the income from the numbered company as the parties were joint shareholders in that company during those years. There is no evidence as to who received the income from the numbered company over those years. The income for subsequent years was obtained from the Applicant’s Notice of Assessments which were provided for the uncontested trial in the Applicant’s affidavit sworn on January 13, 2026, and which are also, I am advised, attached to various financial statements in the continuing record.
- The 2018 Notice of Assessment attached to the Respondent’s financial statements sworn June 29, 2021, indicates that the amount initially reported was $199,310, which was reduced by way of re-assessment to $191,892.
- Respondent’s 2019 Notice of Assessment attached to his financial statements sworn June 29, 2021.
- Sworn to be the Respondent’s last years’ income in his June 29, 2021, financial statements.
- Respondent’s 2021 Income Tax Return attached to his June 8, 2022, email to the Applicant and Mr. Goddard, Line 15000.
- Respondent’s 2022 Notice of Assessment attached to his financial statement sworn April 22, 2025.
- Respondent’s 2023 Notice of Assessment; Ibid.
- Respondent’s 2024 T4 slip attached to his financial statement sworn April 22, 2025.
- See the Applicant’s Form 23C affidavit, Ex. B, (Case Centre p. A5844).
- See Ex. B to E.L.R.’s Form 23C affidavit, sworn November 26, 2025.
- Rogerson and Thompson, Spousal Support Advisory Guidelines: The Revised User Guide¸ Ottawa, 2016, p. 45. Emphasis from the original source.
- Ibid., p. 70.
- Ibid., p. 46.
- Form 23C affidavit of the Applicant, sworn November 26, 2025, Ex. B.
- See the arbitration agreement signed September 14, 2018.
- Ahluwalia v. Ahluwalia, 2023 ONCA 476, 167 O.R. (3d) 561, leave to appeal granted and appeal heard and reserved February 12, 2025, [2023] S.C.C.A. No. 529.
- Although it is difficult to see how he is actually protecting his daughter against the Applicant by naming her as a defendant in a lawsuit.
- Email dated December 30, 2018, attached as Ex. B to the affidavit of Ashley Huang sworn November 1, 2022.
- Ibid., email dated December 22, 2018.
- Arbitration Agreement dated September 14, 2018, at para. 11.
- In an endorsement released concerning several 14B motions before me, I actually blame the Applicant for doing this. The Applicant says that I was mistaken in making this finding. I have refused the Applicant’s request to set aside this portion of the endorsement under rule 25(19) because the Respondent should have had notice of this request to a change in the endorsement.
- Text messages attached as Ex. A to the affidavit of Samantha Kerr dated May 27, 2021.
- Ibid., Ex. F.
- See the Applicant’s affidavit sworn September 29, 2025, at para. 33.
- In fact, in the Form 23C affidavit, the Applicant requested $100,000 in general, aggravated and punitive damages for herself and the same amount under the same heads of damages for her daughter. However, the Applicant did not make a FLA claim for her daughter in her application and D.G.E. is not a claimant in the application. There is no entitlement at this point in time to make a dependent’s FLA claim without amending her application and serving that amended application on the Respondent. Alternatively, D.G.E., as she is now an adult, could make her own claim against the Respondent for the tort of intrusion upon seclusion. If such a claim has been made, it is not before me.
- See my costs endorsement dated October 31, 2024, at para. 17(g).
- In subsequent submissions made by the Applicant and as set out in her affidavit sworn January 7, 2026, it appears that the Respondent knows where the Applicant and D.G.E. (during the summer) reside as she and D.G.E. were served by a process server at that address. The Applicant says that the restraining order may now be made in reference to her home address and office.
- R.S.O. 1990, c. C.12.
- Echoed in s. 46 of the FLA.