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Fettes v Clark: Leave the Snowflake Undisturbed

4 minute read
Also authored by: Ashley Maciuk

Family law matters are like snowflakes. Although each matter is made of the same components – members of a family and a dispute – no two matters are identical because each presents its own unique factors for judicial consideration. The decision in the Court of Appeal for Ontario, Fettes v Clark,[i] emphasizes that in matters where the trial judge’s decision is highly fact-specific, considerable appellate deference is attracted, and the snowflake (i.e. determinations of fact) is to be left undisturbed absent error.

Ms. Fettes and Mr. Clark were in a common-law relationship for seventeen years. During that time, Ms. Fettes contributed to the acquisition, construction, and day-to-day maintenance of a home owned by Mr. Clark. Mr. Clark made all payments for the mortgage, taxes, insurance, and utilities, while Ms. Fettes performed usual daily household chores and gardening.

The trial judge granted Ms. Fettes’ claim for unjust enrichment, and ordered that Mr. Clark pay Ms. Fettes $75,000 and indefinite monthly spousal support in the amount of $561. The trial judge found that Mr. Clark received tangible economic benefits from Ms. Fettes’ contribution to the home, which “helped [him] create the home and property that is now a significant asset”. As the benefit was not provided by way of gift or contract, there was no juristic reason for the benefit. Further, Ms. Fettes suffered a corresponding deprivation through providing “significant labour to a valuable asset without compensation”.[ii]

Mr. Clark appealed the trial judge’s ruling, arguing that the trial judge erred by granting Ms. Fettes’ unjust enrichment claim and awarding indefinite spousal support. The appeal was dismissed.

Citing Kerr v Baranow and Berta v Berta, the court held: “[i]t is well-established that [because] the trial judge’s determination of these issues is highly fact-specific [it] therefore attracts considerable appellate deference absent error. The court emphasized: “[i]t is not the role of this court to retry the trial judge’s findings”.[iii] The court found no error warranting appellate intervention.

With respect to the issue of unjust enrichment, the court held that the trial judge applied the correct test for unjust enrichment from Kerr v Baranow to a highly-fact specific decision. The trial judge thoroughly analyzed and weighed the details of the parties’ seventeen-year relationship, lifestyle, and contributions to the acquisition, construction, and maintenance of the home.[iv] Citing Djekic v Zai, the court held that the trial judge “was not required to undertake a minute appraisal of the value of the respondent’s interest”, and made a fair and reasonable assessment by doing the best she could with the record before her.[v]

With respect to the issue of spousal support, the court held that the trial judge considered and applied all relevant factors for determining Ms. Fettes’ income earning capacity and need for an indefinite period of spousal support. It was reasonable for the trial judge to determine that indefinite spousal support was appropriate based on three factors from Djekic: age, income potential, and duration of the relationship.[vi]

Fettes is consistent with the appellate jurisprudence affording deference to trial judges as triers of fact in matters which are complex, unique, and fact-dependent, absent error. Given that family law practice is highly fact-dependent, the lesson is clear: for an appeal to be successful, absent palpable and overriding errors of fact, errors of law must be identified.


[i] 2020 ONCA 705.

[ii] Ibid at para 7.

[iii] Ibid at para 4, citing Kerr v Baranow, 2011 SCC 10 at para 158; Berta v Berta, 2015 ONCA 918 at para 88.

[iv] Ibid at paras 5-13.

[v] Ibid at para 12, citing Djekic v Zai, 2015 ONCA 25 at para 167.

[vi] Ibid at para 14, citing Djekic v Zai, supra at para 9.

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