The Power of the Vesting Order in Ontario Family Law: Wade v. Avery, 2025 ONCA 275
- Isaac Paonessa
- Apr 20
- 3 min read
CASE SUMMARY – Wade v. Avery, 2025 ONCA 275
What is a Vesting Order?
A vesting order is a legal remedy in which a court transfers legal ownership of an asset from one person to another. If one party's interest in an asset is cancelled out by other obligations to the other party, rather than making that person pay money to the other party, the court is authorized to order the "payment" in the form of a transfer of a certain amount or all of the interest in the asset (e.g., a house). In this way, that person's interest "vests" in the other party's sole name.
A vesting order can be granted where the total amount of the party's other liabilities in the litigation meets or exceeds the dollar value of his or her interest in the asset.
Case Background
Angela Wade and Matthew Avery separated in 2019 after 16 years of marriage. Ms. Wade commenced an application for divorce and corollary relief, including child support, exclusive possession of the matrimonial home, and equalization of net family property. Mr. Avery failed to file an answer or financial disclosure and did not comply with prior court orders, including an October 2023 support order (paras. 1–2).
In 2023, Ms. Wade brought a summary judgment motion. Mr. Avery did not respond. The motion judge granted partial relief and adjourned the balance, including the claim for a vesting order, to an uncontested trial. The appellant again failed to participate (paras. 2, 8).
The trial judge, Justice J. Ross MacFarlane, granted:
A vesting order giving Ms. Wade sole title to the matrimonial home;
Orders for ongoing and retroactive child support; and
Ms. Wade's full assumption of all joint debts (paras. 3, 13–15).
Mr. Avery appealed the decision.
1. Appeals From Uncontested Trials – High Threshold
The Court reaffirmed that appeals from uncontested trials will not be entertained absent clear injustice or compelling merit (para. 3], citing Lamothe v. Ellis, 2022 ONCA 789).
No exceptional circumstances existed here, and the appellant had repeatedly disregarded his procedural obligations and support responsibilities (para. 4).
This illustrates how important it is for a respondent (the one who defends or receives the law suit) to make a response to the application or statement of claim. It preserves legal rights of procedure and can help to achieve a more favourable outcome on the substantive issues in the case.
2. Was the Vesting Order Improper?
The appellant argued that the vesting order should not have been granted because it was not sought in the original application, and it was a “windfall” (in other words, very unfair or disproportionate) due to the home’s appreciation in value.
The appellate Court rejected these arguments because:
Under ss. 9(1)(d)(i) and 34(1)(c) of the Family Law Act, a court has the discretion to grant a vesting order to enforce support and equalization, particularly where past conduct shows non-compliance (para. 6, citing Lynch v. Segal, 2006 CanLII 57943 (ON CA)).
Ms. Wade had properly served notice of her intention to seek a vesting order prior to the uncontested trial (paras. 7–9).
The trial judge reasonably concluded that the value of Mr. Avery’s equity at the date of separation roughly equalled his unpaid obligations and justified transferring title (paras. 12–13).
The lack of current value evidence did not invalidate the order, as Mr. Avery had failed to provide disclosure (para. 14).
3. Was There an Error in Child Support Orders?
The appellant challenged the orders for retroactive and ongoing child support, arguing they contradicted the earlier motion decision. The Court found no inconsistency. The trial judge’s orders were proportionate and legally sound (para. 16).
4. Partition Act Argument Rejected
A new argument raised under the Partition Act was dismissed because it had not been pleaded at trial (para. 17).
Outcome
The appeal was dismissed, meaning Mr. Avery lost.
Costs of $12,500 were awarded to Ms. Wade (para. 18).
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