Arcuri-Gunasekaram v. Gunasekaram
Ontario Judgments

Ontario Superior Court of Justice
F.P. Kiteley J. Heard: November 28, 2013.
Judgment: December 31, 2013.
Docket: FS-10-363621

[2013] O.J. No. 6483 | 2013 ONSC 8017 | 237 A.C.W.S. (3d) 715 | 2013 CarswellOnt 18706
Between Crocetta Arcuri-Gunasekaram, Applicant, and Kishanthan Gunasekaram, Respondent (22 paras.)

Michael Zalev, for Applicant. James Edney, for Respondent.


1 The Applicant brought a motion returnable November 28, 2013 for an order striking the Respondent’s pleadings if he failed to pay arrears of child and spousal support in the amount of $125,000; an order requiring the Respondent to pay $400,000 as an advance on the equalization payment; in addition to or in the alternative to those two claims, an order vesting the Respondent’s interest in the matrimonial home and hank accounts etc in the name of the Applicant with the net value of the assets to be credited against the support arrears and or the equalization payment; if the Respondent’s interest in the matrimonial home is transferred to the Applicant, then an order confirming that the property is no longer a matrimonial home; an order requiring the Respondent to provide information attached in Schedule A; if he failed to provide the information in Schedule A, then an order requiring him to pay the Applicant $500 per day until all of the information has been provided; an order requiring the Respondent to provide proof that he is maintaining the children and the Applicant as beneficiaries of medical and dental insurance as required by the order made August 26, 2011; and costs.

2 The Respondent brought a motion returnable November 28, 2013 to address access issues; to vary the order of Aston J. dated August 26, 2011 which requires the Respondent to pay spousal support in the amount of $10,000 and child support in the amount of $4,000 and to replace it with an order that he pay spousal support in the amount of $1,359 per month and table child support for two children in the amount of $1,386 per month based on income of
$97,545; an order for the immediate partition and sale of the matrimonial home.

3 At the outset, counsel made submissions as to which matters should proceed. The Respondent did not oppose an order requiring him by January 8, 2014 to produce information in accordance with Schedule A, However, both

counsel took the position that some or all of the balance of the motions should be adjourned to a long motion date. I made a preliminary ruling adjourning much of the Applicant’s motion including the request to strike pleadings as well as the Respondent’s, motion for access, to vary child and spousal support and to sell the matrimonial home. I heard submissions only on the Applicant’s motion for an advance on the equalization payment and for a vesting order.

4 Attached as Exhibit V to the affidavit of the Applicant sworn November 19, 2013 is a net family property statement which is described as incorporating assumptions favourable to the Respondent. The matrimonial home was jointly owned at valuation date which is March 31, 2009. Since then, the Applicant has severed the joint tenancy. Assuming 50% of the value and of the liabilities associated with the matrimonial home are allocated to each of the Applicant and the Respondent, the calculation leads to the conclusion that the Respondent owes the Applicant an equalization payment in the amount of $717,025. At paragraph 51 of her affidavit, the Applicant noted that even with adjustments that the Respondent sought, he still owed her $663,500.

5 At paragraph 54 of the Applicant’s affidavit she calculated the net value of the matrimonial home at $792,646 and if he were to transfer his one-half interest to her, he would receive a credit of $396,323 against the equalization payment he owes to her, subject to a possible further adjustment on account of principal payments she had made on the mortgage since the date of separation. At paragraph 81 of the Respondent’s affidavit he referred to paragraph 54 and he said that he agreed that that was a reasonable estimation of the equity in the matrimonial home, At paragraph 9 of his affidavit, he asserted that he was entitled to credits amounting to approximately

6 The submissions advanced on behalf of the Applicant included the following. The Respondent agreed in December 2010 that pending the negotiations, he would pay temporary child support in the amount of $4000 per month, 60% of any agreed upon special and extraordinary expenses, temporary spousal support in the amount of
$10,000 per month, he would pay for the lease on her Mercedes and she would pay the mortgage on the matrimonial home. Since then there had been protracted proceedings including the Respondent’s failure to provide disclosure. On consent, an order was made by Aston J. dated August 26, 2011 that required the Respondent to continue those payments. The Respondent brought a motion to vary child support and spousal support but it was adjourned on consent by Greer J. on May 17, 2012 to be brought back after the Respondent had completed the income report. The prior order for child and spousal support was continued. Notwithstanding that order, beginning in October 2012, the Respondent unilaterally reduced the support to a total of $10,000 per month, $8,000 per month,
$6,000 per month, nil, $1500, $3000, $1500 and September 2013 to the hearing of the motion $3000 per month. Paragraph 5 of the affidavit of the Applicant sworn November 19, 2013 demonstrates that the Respondent had altered credit card statements in order to conceal the true extent of his income, from which the court should infer that his evidence is not reliable.

7 On behalf of the Respondent, Mr. Edney referred to his financial situation and in particular paragraph 4 of his affidavit sworn November 26, 2013 where he indicated that he was “on the brink of declaring personal bankruptcy”. At paragraph 8 he said that if all of the relief sought by the Applicant were granted, it would “effectively bankrupt me and make it impossible for me to participate any further in this litigation, or operate my business”. At paragraph 9 he said that the calculation of the equalization of net family property was predicated on a value of his business interests as valuation date yet the value had declined “precipitously” since separation and he intended to make a claim that the equalization of net family property was unconscionable. As indicated in paragraph 17, he considers it “abundantly obvious, having regard to our financial circumstances, that the matrimonial home needs to be sold”. Mr. Edney observed that while claiming an equalization of net family property, the Applicant is a creditor of the Respondent and he argued that a vesting order at this point would result in the Applicant obtaining a preference over other creditors. He asserted that the Respondent needed to hang on to as much equity as possible so that he could fulfill his obligations to his creditors. He also pointed out that a vesting order would not respond to the Applicant’s immediate financial needs. He did indicate that the Respondent would consent to the Applicant using her half interest in the matrimonial home as security to borrow either for day to day expenses or for professional fees associated with the litigation.

8 Mr. Zalev pointed out that the only claim asserted by the Respondent in his Answer is for an equalization of net family property. Mr. Edney raised the prospect that he might seek leave to amend to assert a claim that the value of the net family property be divided unequally.

9 On the issue of an advance on the equalization payment, Mr. Zalev relied principally on Zagdanski v. Zagdanski, 2001 CarswellOnt 2517 (Ont. S.C.J.); Firestone v. Pfaff, 2012 ONSC 4909 (Ont. S.C.J.) and on the issue of deciding the motion within the context of the existing pleadings, he relied on Rodaro v. Royal Bank, 2002 CarswellOnt 1047 (Ont. C.A.). On the issue of a vesting order, Mr. Edney relied on Ludmer v. Ludmer, 2013 ONSC 784 (Ont. S.C.J.).

10 Sections 4(1), 7(1) and 9 of the Family Law Act give the court inherent jurisdiction to award an advance on the equalization payment. Applying the “Zagdanski factors”, I am satisfied on the record as it stands (including the Answer) that there will be little or no realistic chance that the amount of the contemplated advance will exceed the ultimate equalization amount and there is some considerable degree of certainty about the right to and likely minimum amount of, an equalization payment. To the extent that the Respondent claims credits, they can be accommodated because the application of his equity in the home to the equalization payment still leaves a balance owing. The Applicant has a reasonable requirement for funds in advance of the final resolution of the equalization issue, including funds to provide for herself and the children and funds to enable her to continue to prosecute the action.

11 As indicated at paragraph 34 of Firestone v. Pfaff, the fourth Zagdanski factor is the consideration of fairness to the Applicant which should be extended to included fairness to the Respondent.

12 Fairness dictates that an order should be made in favour of the Applicant for an advance on the equalization payment for the reasons indicated in paragraph 6 above. The strong evidence that the Respondent has altered credit card statements to conceal the true extent of his income is a compelling factor in favour of the Applicant and against the Respondent. In addition, the fact that the Respondent is clear that bankruptcy is a realistic possibility means that it is understandable that the Applicant wants to realize on her claim as soon as possible.

13 The factors relevant to fairness to the Respondent are these. First, he intends to seek leave to amend his Answer to claim that the net family property ought not to be equalized. Second, he takes issue with the Applicant’s evidence that the delay has been attributable to him or that he is concealing his assets. Third, his financial situation is precarious and he needs to get access to his equity in the matrimonial home in order to avoid bankruptcy or to satisfy his creditors should he take that step or creditors force him into it.

14 I do not consider the first factor to be relevant. I agree that the motion must be determined on the basis of the pleadings as they exist. If the Respondent only recently woke up to a possible claim for an unequal division of the net family property, that ought not be a factor in his favour. Nor do I consider the second factor to be relevant. While no doubt he has a different perspective on the reasons for delay, the fact is that he acknowledged in paragraph 68 of his affidavit that he has not properly responded to requests for disclosure. He explained it on the basis of being preoccupied by trying to save his business but that does not negate that on this record, much of the delay is attributable to him.

15 Of all of those, the third factor tips the balance in his favour. As indicated above, at the outset of the motion on November 28th, counsel made submissions about which matters would proceed. I ruled that I would hear submissions on the request for an advance on the equalization payment and the request for a vesting order but I adjourned the Respondent’s motion for an order for sale of the matrimonial home. In retrospect, the submissions on all of the issues affecting title to the matrimonial home should be heard at the same time. If I grant the order requested by the Applicant, it will mean his motion for sale of the matrimonial home is moot. It may be that it fails. But he has a right to have the motion heard.

16 Before concluding, I raise a residual concern. As Mr. Edney indicated, if the order requested is made and the court directed that title to the matrimonial home be transferred to the Applicant, that may result in an unlawful preference over the Respondent’s other creditors. This legal issue was mentioned by counsel but was not developed. I hesitate about making an order in favour of the Applicant with that prospect. I am dismissing the motion with leave to bring it back after or simultaneously with the motion by the Respondent for sale of the matrimonial home provided that counsel ensure that the facta filed address this legal issue.

17 I have a wide discretion in making an order as to costs. The motion for an advance on the equalization payment and for a vesting order was not successful and in theory the presumption in rule 24(1) applies and the Respondent might be entitled to costs. I am not prepared to entertain submissions on the issue of costs for the attendance on November 28th for these reasons. First, both parties still have substantial other issues in their respective notices of motion. The preparation of the materials will be the basis of the long motions on January 13 or March 24. Second, the motion for an advance on the equalization payment and for a vesting order was justified given the circumstances described in paragraph 6 above.

18 Counsel filed material for the motions returnable November 28th that have not been properly incorporated into the continuing record. Counsel should arrange for it to be brought up to date. The continuing endorsement brief has no endorsements or orders which suggests that the original is missing and should be replicated by counsel.

Order to Go as Follows:

19 By January 8, 2,014, the Respondent shall provide the documents and information listed in Schedule A to the Applicant’s notice of motion.

20 The motion by the Applicant for an order for an advance on the equalization payment and for a vesting order with respect to title to the matrimonial home is dismissed without prejudice to the Applicant renewing that motion after or simultaneously with the hearing of the motion on behalf of the Respondent for an order for sale of the matrimonial home, provided that the facta relied upon at that time will address the question of whether the granting of an order as requested might result in an unlawful preference.

21 Balance of the motions returnable November 28, 2013 are adjourned to be heard as a long motion for 1/2 day at 10:00 a.m. on January 13, 2014 unless Mr. Edney is called for trial in Brampton, in which case, the long motions shall be heard on March 24, 2014.

22 Neither party shall recover costs of the attendance on November 28, 2013.

Thomas Dart, Partner, Family Law

Many separated couples have a difficult time managing the emotional stress of a relationship breakdown. The financial strain of getting legal advice to learn about how the law impacts their separation significantly increases that stress. Many people have no choice but to try and do things on their own, without legal help. Even those who can afford legal assistance struggle with learning about the law and how it impacts them. Often the emotional trauma of the separation clouds their normal ability to manage their situation.

Fortunately, there is now a tool which can help. With the assistance of members of the bar of Ontario, Ryerson University has launched the “”. The goal of this tool is to provide information specific to the situation in which the separated person finds himself or herself. By asking a series of questions in each of the major areas where most people need information, the tool takes the input from the “client” and provides him or her with a written report which includes:

  1. Information about what “process” (collaborative law, mediation, arbitration or court) might be used for their situation;
  2. Direction on what information or documentation they need to gather to move toward resolution;
  3. Information about the law and how it applies to their situation including parenting, child support, property division and spousal support.
  4. Information about how they can help lower the cost of legal services which they might require.

Most importantly, the portal is intended to be geared solely to the individual and what he or she needs to know about their specific situation.

The portal takes some time to complete but that’s okay because it does not have to be done all at once. You can work on it for a period of time and then go back to it as many times as you need to get it all done.

Who and how does it help?

It helps clients understand the law and how it affects them. It gives them knowledge about the law and the best process to help resolve any difficulties. It gives them more control over how their case should be handled if they do decide to retain a lawyer or if they decide to try and represent themselves in their own chosen method of resolution. It helps them understand why they might need professional assistance from lawyers, financial advisers, mental health professionals, mediators, collaborative lawyers and family arbitrators as well as the court system.

It helps all professionals who provide assistance to separated individuals because the clients become aware of the types of assistance they need to get them through this difficult time in their lives. It also will help each professional because the individual will now know why they need their assistance and what to expect from their chosen professional.

It helps the court system because it educates the individuals who need that process to understand the law a bit better and what information is important to assist the court in finding a solution to their problems. Hopefully, as well, it will enable people to solve their own problems and alleviate some strain on this very overworked system by eventually reducing its load.

The best part is it’s absolutely free to use – its ongoing operation is funded by Ryerson University and its funders. Try it out now by going on its web site at: .

Remember that this portal does not provide legal advice and provides information only about Ontario law. For more information about the site and how and when it was created see

We are able to provide this paper commenting on various arbitration cases and written by well-respected Toronto lawyer, Brahm Siegel of the firm Nathan Siegel, LLP, with Brahm’s permission for the benefit of family lawyers attending the Simcoe County Family Law Lawyer’s Association continuing legal education program on June 22, 2018. Brahm is a certified arbitrator, a skilled family law lawyer and a generous contributor to the education of the legal profession. On behalf of our Association, we give our heartfelt thanks to Brahm for allowing us to use this excellent work. It will be available on this blog only until June 30th, 2018 to allow participants in the educational program to make use of it.

Thomas Dart, Partner, Barriston LLP

Siegel-Medarb 2018



By David Harris-Lowe  – Partner, Family Law

You may hear about lawyers talk to you about legal costs when a court action is started.  This refers to two things – the amount you pay your lawyer for legal representation and also whether one litigant has to pay the other legal costs for the cost of the law suit.  In family law cases, this is governed by Rule 24 of the Family Law Rules.  The idea is simple, whichever party is successful can expect to have some or all of his or her legal costs paid for by the unsuccessful party.  This usually amounts to somewhere between 50% and 80% of the successful party’s legal costs that will be paid for.

A key factor in determining success and the amount of costs payable is whether a party has made an offer to settle and whether the party obtained a result that was more favourable than the offer to settle.  The goal is to encourage litigants to resolve their cases quickly and without legal costs because they know if they don’t accept reasonable offers they might have to pay legal costs.

Take for example a situation where Terry owes Jordan some money.  Terry says it’s $8,000 and Jordan says it’s $10,000.  Terry offers to pay $9,500 because Terry doesn’t want a trial.  Jordan wants it all and doesn’t accept the offer.  They have a trial that lasts a day and Terry pays $5,000 to the lawyer.  After the trial the judge decides that Terry owes Jordan $8,500.  Terry obtained a result that is more favourable than the offer of $9,500.  This means that Jordan owes Terry legal costs.  Depending on when the offer was made, Terry should recover around $3,000 in legal costs.  So, Terry pays Jordan $8,500 minus the $3,000.  Jordan receives $5,500 and pays the lawyer $5,000, leaving $500.00.  Jordan, shouldn’t have been so aggressive.

The decision about when to make an Offer to Settle, now much it should be and how costs rules work in a legal case is extremely important to your case.  It is important to get legal advice from a lawyer who understands these rules and can discuss the risks with you so you can determine what the risks are and what risks you want to take.

By Lindsay Hayes, Articling student

We’ve all seen the posts of an over-sharer on Facebook, Twitter, Instagram, etc., whether it’s

social-media-icons-stacked.pngdisparaging comments about their ex or ‘not safe for work’ photos from a rough weekend. These dirty laundry posts can not only have damaging  consequences, such as being fired or getting arrested ,but can also end up being used as damaging evidence  in a court of Family Law.

A 2012 Harvard University study provided insight into why we share such personal information on social media. The study found through the use of MRI scans that “Self-disclosure was strongly associated with increased activation in brain regions that form the mesolimbic dopamine system”. A secondary study further found that activity in this brain region was increased when sharing thoughts to family and friends, and decreased when thoughts were kept private.

The trouble some Family Court litigants have distinguishing between what is appropriate for a public audience and what should be kept private has proven problematic to as described below.

In a motion for unsupervised access to his child, a father with a history of criminal behaviour posted pictures on Facebook, taken while driving, of his speedometer reading a speed of 100km/hour over the speed limit. The court determined that the father needed to show he could act as responsible adult before unsupervised access would be granted.

In one case a mother’s tweets about phone calls she made while intoxicated and about being hungover were led as evidence by her ex-spouse in a custody battle.

In another case a mother lost custody of her child in the case after images of her dancing on a bar and smoking marijuana were posted on Facebook and used as evidence against her.

The courts have made it clear that as long as social media posts meet the admissibility and relevancy requirements they can be used as documentary evidence. 

The following should not be considered legal advice, but I recommend indulging in a piece of chocolate to release that dopamine rather than airing your dirty laundry on social media for all to see. 

Thomas Dart, Partner, Family Law

How people approach climate change and how people approach family conflict are amazingly similar. Here are some of the similarities:

Climate change Family law disputes
People deny climate change is happening At least one of the parties denies that there is a conflict which needs attention
Those people who accept that climate change is happening do not know what to do about it People in family conflict do not know how to resolve the conflict in a constructive way
Those who deny climate change belittle and denigrate those who accept that it is happening thereby creating more conflict One partner will belittle and denigrate the other thereby increasing the family conflict
Polarization occurs in climate change conflict Polarization occurs in family conflict
Polarization leads to harmful attempts to resolve the conflict such as not so peaceful demonstrations, litigation, resistance to law and order, refusal to accept authority. Polarization leads to hard-fought and intense litigation at the one end and to family violence at the other end. Often, one partner will not accept judicial rulings.
Neither party to this conflict accepts responsibility for the conflict. Neither party to this conflict accepts responsibility for the conflict.
No one tries to find a better way to resolve the conflict. The only way seems to be a “might is right” approach. Marital partners who are separating sometimes prefer to remain in conflict. They do not see the other’s point of view and believe that there perspective to the resolution is the only right approach.
Meanwhile nothing happens to save the climate. Meanwhile nothing happens to save the family from increasing damage. The conflict continues.

There has been so much written about how to constructively resolve family conflict which is unfortunately so often ignored. When it comes to family law, there are two very important pieces which must be addressed. First, is the substantive law which sets out the rights and obligations of each party. The second, and perhaps more important piece, is the process under which the conflict is to be resolved.

If people in family law conflict take the usual approach, they will retain a lawyer who will provide them with the necessary information about the law. Some lawyers believe that the only way to resolve family conflicts is to maintain control over the client file and, more importantly,  the process under which the conflict is to be resolved. They will usually try negotiations with the other side first but if that does not work, they will automatically turn to the courts. It is well-known that once court intervention is invoked, the level of conflict rises rapidly. The more allegations each party makes against each other the higher the conflict rises. Each party continues to try to prove that they are right and that they have been unjustly treated by their partner.  The lawyer seems to fail to understand that each party to a dispute always has their own perspective which is sometimes not based in fact. They do not try to find solutions for the client. More importantly, they do not inform the client of the various methods by which family conflict can be more constructively resolved.

More and more people in conflict have come to the realization that the approach most lawyers advocate, namely  the court process, is very expensive and that it cannot resolve their disputes in a very timely manner. This is through no fault of the court system. Typical of government obligations these days, courts are seriously underfunded and all the people who work in the system are overworked trying to satisfy the demand. People in family conflict are no longer hiring lawyers because they cannot afford to do so. This only causes further delays in the court system because the people in conflict often do not understand the law, know how to follow procedures, lead evidence or properly present their case to the court for a decision. Judges do their best to help but they cannot act as counsel to each of the two parties.

The family law itself is a complex body of rules and regulations which takes years to completely understand and apply to any particular conflict. The court process is governed by The Family Law Rules which themselves are not easily understood and utilized by non-lawyers.

So what can we do. Some of the suggestions which have been provided through many studies in this area and which have yet to be acted upon are summarized as follows.

First, we can try to change the climate under which family conflict operates. Instead of turning first to litigation through the courts, family law lawyers should encourage clients to turn to a good mediator and, if mediation cannot resolve the dispute, then encourage the clients to turn to arbitration. Family law lawyers need to remind people that there are also other good alternate methods for resolving family conflict such as collaborative law and structured negotiations. Lawyers should be trained in each of these processes or at the very least understand how they operate in order to give their clients better options.

Secondly, we can try to simplify family law itself. There may well be a better way to divide up property than to force people to value assets at the date of separation, at the date of the marriage and then to establish if any of the property is not shareable with the other partner. While sharing the wealth accumulated during marriage is a noble objective, the process under which that sharing operates is fraught with difficulty and expense. Trying to find a value for property is a sure method of increasing conflict.

Thirdly, when court becomes necessary, we need to appoint judges to the court who are family law specialists and we need to create a “vertical” system of case management whereby each judge is assigned a number of cases and is responsible to assist in the resolution of those cases all the way through to a trial if necessary. This means that there must be a dedicated family law court which only handles family law matters and which has an independent scheduling process, an independent administration and which lets the judges who sit in the court manage it fully. There is a model for such a court in the Ontario system. We do not have to reinvent the wheel.

Fourth, and by no means final, we need to educate the public and those who find themselves in serious family conflict that there are many resources available to them to teach them how to better resolve their conflicts and with appropriate counselling, many may in fact decide not to separate but to remain together for the betterment of all. This entails creating a climate whereby the first option for families in conflict is to find help, not litigation.

We all have a responsibility to try to save our climate – for the sake of the planet and for the sake of our families. We have an equal responsibility to address family conflict in a much better way.

Timothy Gronfors. Associate, Family Law.


As a playful means for highlighting millennials’ preference for spending on luxuries rather

gift house.png

than saving for essentials, a recent BBC article has developed the satirical ‘avocado toast index’.

Using statistics from across the globe, the index calculates how many years it will take to afford a down-payment on a house by merely forgoing a daily ‘smashed avocado-on-toast’ breakfast. And good news Mexico City millennials – your abstinence from avocado toasts will yield you a home in 9 short years!

Leaving aside whatever superfluous financial priorities millennials may (or may not) have, the article does highlight a chilling reality: prospective first-time home buyers are struggling to crack today’s market. For many young couples, this real estate crunch has necessitated a turn to family members for financial assistance.  

But what happens to that financial contribution if the couple separates? Was it intended as a gift or a loan? Is the parent entitled to a repayment? How these questions are answered can have a massive impact on the resulting property distribution.

But let’s take a step back and narrow the parameters. As a starting point, let’s assume that our hypothetical couple, John and Jane, are common law partners (there are very distinct rules on matrimonial homes and property division for married couples).  Let’s further assume that after losing out on a number of bidding wars that resulted in sales above listing price, John and Jane realize that they’ve been priced out of the market and that their pre-approval for a mortgage will not suffice. Thankfully, Jane’s father has come to the rescue; he’s willing to contribute $30,000 towards the down-payment, which will in turn allow the couple to qualify for a larger mortgage.

In an ideal world, Jane and John take their new financing, purchase their dream home, and live  happily ever-after but, unfortunately, Jane and John end up separating five years down the road and are forced to sell the home. Jane subsequently contends that $30,000 from the net sale proceeds should be paid back to her father. John alleges that the $30,000 was a gift to them as a young couple with no strings attached.

The Supreme Court of Canada has established two possible ‘presumptions’ when dealing with such gratuitous transfers (i.e. where a transfer is made without consideration). Unless the transfer is specifically from a parent to their child, the presumption is that the transfer was a bargain rather than a gift, meaning that it must be repaid. In our circumstance, while it was Jane’s father that made the gratuitous payment, Jane was an adult when she received it meaning that the presumption will be that the $30,000 was a loan/bargain. Because presumptions are simply starting points, John will have the onus of proving otherwise and that the $30,000 was a gift.

To add a further wrinkle to our scenario, let’s assume that when John and Jane accepted the $30,000, their bank sent out a commitment letter outlining that as a condition for receiving the funds, all three parties must sign a ‘gift letter’ clearly stating that the $30,000 is not a loan. Later, in the subsequent court battle, John produces this letter as evidence that the $30,000 was intended to be a gift. While the outcome of any one case will depend on all the surrounding facts, in decisions such as Crepeau v Crepeau the courts have found that a bank ‘gift letter’ is insufficient evidence to rebut the presumption of a bargain/loan. As in Crepeau, the finding may well be that such a ‘gift letter’ was executed solely for the purpose of obtaining the mortgage approval with no true intention to gift.

A recent Globe and Mail article by Josh O’Kane pointed out that while slightly more than 1/3 of Canadian millennials now own a home, nearly two-fifths received financial assistance from their parents to do so. Whether it’s from a parent, relative, or friend, home buyers receiving gratuitous transfers can benefit immensely from the assistance of a qualified family lawyer. There are various mechanisms, such as a cohabitation agreement, which can give the parties peace of mind in knowing that their intentions are properly delineated and help avoid a costly court battle down the road.  


By Douglas J. Manning, Partner, Certified Specialist in Family Law

There has been some press coverage over the past couple of months about Brad Pitt and Angelina Jolie’s marital breakup and their fight about the children.  However, the amount of coverage has been far less than in a lot of Hollywood divorce cases.

Why is this?

While there have been hints in the gossip media about differences in parenting styles and priorities and the possibility of infidelities (one or more),  statements coming from both parties suggest that they want to make the emotional health and wellbeing of their children the number one priority of the split up process.  They have decided to use an alternative to the public legal system to settle their differences.  Brad, Angelina and their lawyers decided to use a “private court” process so that they can keep control of the process and avoid the sensationalism that often accompanies these Hollywood breakups.

A private court is the same as using an arbitrator to assist disputing parties in resolving their differences.  The process is private in that there are no public court filings (except perhaps the documents that start the divorce and the documents that resolve the issues – but this is not necessary in all cases).

The parties get to choose their “judge” or arbitrator.  If the matter involves sensitive child development issues related to the children’s attachment to each parent or one or more children’s special developmental disabilities, then the parties can select a judge with considerable experience with these topics.  Conversely, if the separation involves complicated financial issues, then the parties and their lawyers can agree on a judge/arbitrator who is comfortable in dealing with these sorts of issues.

The “trial” can proceed in much the same way as a public trial does. The parties can call witnesses who will give evidence and be cross-examined by the lawyers.  Also, the parties can agree to retain the services of experts – such as child psychologists (if the issues involved complicated children’s issues) or certified business valuators (if the issues are financial).  But none of this becomes public and the parties sign a non-disclosure agreement.

Readers may be now thinking – but this “private” court process is just for the rich or famous.  Not true.  The private court or arbitration process can be used to avoid some of the costly and time consuming steps that are required in the public court process.  Also, using your own, private process means that you can schedule the steps in your case as quickly as is necessary to meet your needs for a quick, or not-so-quick, resolution.  You are not handcuffed by the public system that sets the calendar for when judges are available and when cases will be heard.

So before starting down the road of going to the public court system to resolve your family law issues, speak with your lawyer about the advantages and disadvantages of using arbitration or a “private” court process.

By David Harris-Lowe, partner, Family Law


Which spouse owns the family home, whether you’re married or in a common law relationship, matters.  The rules around ownership are important and can make a significant difference to how property issues get resolved.  Some rules that are often surprising to people include:

a)      When you get married, ownership of assets, including the matrimonial home matters.  Family law does not change ownership.

b)      If you own the matrimonial home on the date of marriage and on the date of separation, this can result in a significant difference to how much a spouse owes (or is owed) if only one spouse owns a matrimonial home.

c)       Common law couples, even after years of living together, do not have the same rules with regard to property.

d)      Even if you are the legal owner of a home, the other spouse may still be able to claim an ownership interest in the home.

The rules regarding the treatment of family property sometimes lead to surprising results and they do change from time to time.  The idea of a joint family venture has only existed for less than 10 years and significantly changed how a non-owning spouse can claim an interest in family property.

If you are going through a separation, it’s important not to assume what the law says about the division of property, especially the family home.  It is always a good idea to meet with a family law professional to get accurate information.

 Catherine Hyde, Paralegal

“Alternative facts” has now become a new catch phrase. What is an alternative fact? My take on it is that if I am doing the telling I believe my statement to be a plausible alternative to the truth. The question is, if it is an alternative to the truth is it in fact a lie?

In a matrimonial matter there are two parties and for ease of reference we will refer to them as “husband” and “wife” although they may be of same sex or living common law and deemed partners.

The husband sees the couch as “blue”. The wife sees the couch as “grey”. Is one of them stating an alternative fact?  It may be that one of them is colour blind and they truly see the couch as the specific colour they have stated.  That is their truth.

What if the wife states that the husband never helped with the children?  He worked long hours and was never available to help with the meals, bedtime routine etc. The husband states that he worked long hours but always ensured that he was home at dinner time to help out with the children’s homework and bedtime routine and then would do some work at home.  Who is stating the truth? Who is stating an alternative fact? Perhaps they are both stating the truth. It is their perceived truth. When one is hurting they may see things in a certain perspective that may or may not be entirely true. Having started court proceedings they are trying to make their case that they are the better parent. This may skew their vision.

It is important for your lawyer to be able to get to the truth and determine if perhaps there is a different side to the story. One should be careful of utilizing terms such as “never” and “always”. If you have chosen to tell your lawyer an alternative fact, that is, a fact skewed in your favour over the truth, your lawyer is not going to be able to help you sort out your issues. It is best to look at the overall picture and be as truthful as you can.  It takes two usually to bring the situation to the crisis point where you have sought to proceed by way of Court. Both of you will have your “side of the story” but so long as you do not rely on alternative facts and simply rely on the truth, your lawyer will be able to help you in an efficient and less time consuming manner. If your lawyer has to dig through the alternative facts to get to the truth, this will prolong matters and be costly to you.

Take a big breath, look at your situation in an impartial, non-emotional manner and provide your lawyer with the true facts.