Aaron Myer Franks

The respondent husband sought leave to appeal an interlocutory procedural order relating to filing, questioning, and refusals to answer undertakings in a family proceeding.

The Divisional Court considered the criteria for granting leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure.

The court held that the requirements for leave were not satisfied because the prior consent order cited did not constitute a conflicting decision and the proposed appeal did not raise issues of public importance.

The matter was characterized as a procedural dispute between family litigants.

Leave to appeal was therefore denied and the motion dismissed.

Following a successful appeal where the matter was remitted for trial, the Court of Appeal considered the parties' costs submissions.

The court applied the presumption that a successful appellant is entitled to costs and awarded the appellant $10,000 inclusive of disbursements and taxes.

The appellant father appealed a decision dismissing his motion to change child support for his adult disabled son, who had begun receiving Ontario Disability Support Program (ODSP) benefits.

The trial judge and Divisional Court held that the presumptive table approach under the Federal Child Support Guidelines was not inappropriate.

The Court of Appeal allowed the appeal, finding that the receipt of ODSP benefits displaced the assumptions underlying the table approach, making it inappropriate.

The matter was remitted for trial to determine the appropriate amount of support under s. 3(2)(b) of the Guidelines on a more complete factual record.

Following an appeal where the appellant wife was successful, the parties agreed on consent to set aside the trial costs disposition.

The Court of Appeal ordered that the trial judge determine the costs of the proceedings below, as well as the costs of the appeal and cross-appeal, bearing in mind the appellant's success.

The parties separated and the central issue was the equalization of their jointly-owned physiotherapy clinic.

The application judge valued the business by averaging two competing expert figures and ordered the appellant to buy out the respondent's share.

The Court of Appeal allowed the appeal, holding that under the Family Law Act, a judge cannot order a buyout of jointly-owned property without consent; the property must be sold.

The court also found the valuation method flawed and ordered the business listed for sale at the respondent's expert's valuation figure, with an accounting to follow.

Following an appeal where the appellant succeeded in reducing the amount payable but failed to obtain a new trial or overturn the setting aside of a domestic contract, the court determined costs.

The respondent was deemed largely successful and awarded $25,000 in appeal costs.

The issue of trial costs, originally awarded on a substantial indemnity scale, was remitted to the trial judge for reconsideration in light of the appeal outcome.

On a family law appeal arising from marriage breakdown, the court upheld the refusal of an adjournment and rejected an allegation of reasonable apprehension of bias against the trial judge.

It also upheld the setting aside of a domestic contract under s. 56(4)(b) of the Family Law Act where the respondent did not understand the nature or consequences of the agreement and had no meaningful independent legal advice.

The court held that, although unjust enrichment was established, the trial judge erred by granting a proprietary constructive trust without first considering whether a monetary remedy would suffice under the Kerr framework.

The proper remedy was equalization under the Family Law Act, resulting in an equalization payment of $390,646.77 secured by a charge on the farm.

Retroactive child support from the date of separation was upheld, but interest on arrears was reduced from 10 per cent to 3 per cent, and the loan repayment order was set aside.

This was a costs endorsement following a family law appeal.

The court held that success on the appeal was divided and ordered that each party bear their own costs of the appeal.

The court further declined to interfere with the trial judge's costs award, finding it reasonable and noting that the result of the appeal would have only a modest monetary impact on the trial decision.

The parties separated after a 36-year marriage during which they operated a dairy farm.

The application judge ordered a lump sum spousal support payment, refused to allow the husband to deduct future disposition costs from his net family property, found a milk quota transfer was not a gift, and ordered the in specie division of six jointly owned farm properties.

On appeal, the Court of Appeal held that the application judge erred in refusing the disposition costs deduction and in ordering the in specie division of the properties under the Family Law Act and Partition Act.

The properties were ordered to be sold.

The appeal regarding the milk quota and spousal support was dismissed.

The respondent father applied in Ontario to vary a final consent order respecting the primary residence of the parties' six-year-old daughter.

The applicant mother moved to transfer the variation application to Manitoba under s. 6(3) of the Divorce Act.

The court found that the child, who had lived in Manitoba for almost her entire life, was most substantially connected to Manitoba.

The court concluded that transferring the proceeding was in the child's best interests and would not impede the proper administration of justice.

The motion to transfer was granted.

The respondent sought costs following a successful cross-motion to enforce access and the dismissal of the applicant's motion for private school tuition.

The court found the applicant's behaviour unreasonable, noting her motion lacked merit and she unilaterally terminated access despite a separation agreement.

The respondent had made a reasonable offer to settle that was more favourable than the final order.

Applying the Family Law Rules, the court awarded the respondent costs on a full indemnity basis.

However, finding the docketed hours excessive, the court reduced the claimed amount of $40,829.62 and fixed costs at $25,000.00.

The Court of Appeal previously dismissed the appellant's appeal regarding child custody and the language of instruction, and requested written submissions on costs.

The appellant argued he was successful on the critical issue of the importance of the children's language of instruction, despite the appeal being dismissed due to the children having remained in French immersion for three additional years.

The respondent argued she was entirely successful and sought $25,000 in partial indemnity costs.

The court applied the usual rule that the successful party is entitled to costs, but reduced the respondent's award to $20,000 on a partial indemnity basis to reflect the appellant's partial success in demonstrating an error by the trial judge.

Following an appeal where the appellant was partially successful in reversing a significant portion of the trial judge's award, both parties sought partial indemnity costs.

The Court of Appeal determined that because neither party was wholly successful at either the trial or appellate level, the appropriate disposition was no order as to costs for the appeal, the motion, or the trial.

The mother appealed an order staying her claims under the Divorce Act and Family Law Act for lack of jurisdiction.

The father cross-appealed the dismissal of his motion seeking the return of the children to China under the Children's Law Reform Act.

The Court of Appeal dismissed the mother's appeal, finding she was not ordinarily resident in Ontario and lacked a real and substantial connection to the province.

The Court allowed the father's cross-appeal, finding the children were habitually resident in China and not physically present in Ontario when the application commenced, thereby depriving the Ontario court of jurisdiction under s. 22 of the CLRA.

The matter was remitted to the Superior Court to determine the appropriate order under s. 40 of the CLRA.

Following competing family law motions addressing custody, access, assessment, and child support, the court determined the issue of costs.

Applying Rule 24 of the Family Law Rules, the court considered success, proportionality, the parties’ conduct, and the limited financial means of the litigants.

The respondent had brought an earlier motion that was found not urgent and obtained no relief, entitling the applicant to costs of that motion.

For the later motions, the court found divided success between the parties and ordered each to bear their own costs.

The appellant father appealed a trial judge's order awarding retroactive child support, retroactive section 7 extraordinary expenses, sole custody to the respondent mother, and the transfer of a life insurance policy.

The Court of Appeal allowed the appeal, finding the trial judge erred in principle by failing to apply the criteria under section 7 of the Child Support Guidelines and the D.B.S. factors for retroactive support.

The court also held it was an error to make unrequested substantive orders regarding custody and life insurance.

To save time and expense, the Court of Appeal substituted its own order fixing arrears and setting future section 7 expense obligations.

Following an appeal, the court issued a costs endorsement.

The parties agreed on the quantum of costs, and the court ordered the appellant to pay the respondent costs of the appeal in the agreed amount of $12,500, inclusive of disbursements and taxes.

The appellant father appealed a trial decision granting sole custody of the parties' three children to the respondent mother.

The father argued the trial judge erred by failing to consider ordering the children to attend a homogeneous French-language school as a condition of custody.

The Court of Appeal found that the trial judge did err in failing to consider such a condition, as the language of education is an important factor in the children's best interests.

However, the Court declined to order a change of schools on appeal, concluding that given the passage of time, it would no longer be in the children's best interests to disrupt their current education in a French immersion program.

The appeal was dismissed.

The appellant wife appealed a trial decision ordering her to pay an equalization payment of $117,514.50 and costs to the respondent husband.

The primary issue was the division of the husband's pension, specifically whether the wife was entitled to a share of the pension's growth during their five-and-a-half-year pre-marital cohabitation period based on unjust enrichment.

The Court of Appeal dismissed the appeal, finding no unjust enrichment as the relationship did not constitute a joint family venture and the wife had not suffered a corresponding deprivation.

The Court also rejected arguments regarding the application of new pension valuation legislation, unequal division of net family property, instalment payments, trial fairness, and costs.

The appellant appealed a family law trial decision.

The Court of Appeal found that the trial judge's reasons for judgment were woefully inadequate, as they lacked necessary findings of fact and failed to show the path taken to reach the conclusions, including those related to imputed income.

The Court set aside the challenged orders and directed an expedited new trial for all issues.