Andrew Alan Feldstein

This is a costs ruling arising from a family law trial decision released on May 5, 2025.

The principal trial issues involved determination of the valuation date and property ownership, including equalization of the spouses' net family properties.

Neither party's choice of valuation date was accepted; the court determined a different valuation date (August 3, 2013) for which there was insufficient evidence to proceed with a full trial.

The applicant sought partial recovery costs of at least $375,000, while the respondent sought the same amount or alternatively that no costs be awarded.

The court found the applicant achieved partial success on the valuation date and limitation period extension, while the respondent achieved no success and acted in bad faith.

The court awarded costs to the applicant but at a significantly reduced amount due to inefficiencies in the litigation strategy and reliance on an invalid agreement.

This decision addresses the determination of the valuation date for equalization of net family property and the extension of time to bring an equalization claim under the Family Law Act.

The court finds the parties separated on August 3, 2013, and grants the applicant wife an extension of time to bring her claim, rejecting the respondent husband's earlier separation date and arguments of substantial prejudice.

The court also finds that a family "Agreement and Last Will" was a sham trust, intended to shield assets from creditors, and that the evidentiary record is insufficient to determine equalization, requiring a new trial on equalization and support.

The respondent husband, M.D., brought a motion for summary judgment to enforce an alleged settlement agreement in a family law proceeding, which the applicant wife, N.C., disputed.

The court examined whether a binding agreement had been reached, specifically focusing on two essential terms: an indemnity clause and a $350,000 credit clause.

The court found that there was no genuine issue requiring a trial on the question of whether a binding deal existed, concluding that there was no meeting of the minds on all essential terms from the perspective of a reasonable observer.

Consequently, the husband's motion for summary judgment was dismissed.

The Applicant sought a final order on an uncontested basis after the Respondent's pleadings were struck due to persistent non-compliance with disclosure orders.

The court addressed financial issues including child support, equalization, post-separation adjustments, and costs.

The court imputed an annual income of $1,200,000 to the Respondent due to his failure to provide disclosure and his implausible reported income.

Lump sum child support of $2,303,606 was awarded retroactively and prospectively until each child turns 21, along with $45,944.83 for retroactive section 7 expenses.

An equalization payment of $9,123,836 and post-separation adjustments of $115,592.58 were also ordered.

Pre-judgment interest was awarded.

The court found the Respondent's litigation conduct amounted to bad faith and awarded the Applicant $200,000 in legal fees and disbursements on a full recovery basis.

The court also ordered the transfer of properties and sale proceeds to the Applicant to satisfy the amounts owed.

The applicant wife brought a summary judgment motion seeking payment of $193,596.50 from the respondent husband, representing her share of a joint TD Waterhouse account that she contended was not included in their separation agreement's equalization payment.

The husband opposed, claiming the account was included and challenging the service of a Request to Admit.

The court found the husband was deemed to have admitted the facts in the Request to Admit due to his failure to respond.

Applying the summary judgment test, the court determined there was no genuine issue requiring a trial, concluding the husband owed the wife the claimed amount.

The court also found the husband's procedural delays and misrepresentations lacked credibility.

The wife's motion was granted, and she was awarded the principal sum with interest and costs.

This endorsement addresses a Rule 14B motion brought by the respondent to correct mathematical errors in a prior uncontested trial judgment regarding equalization payments and to revisit the costs award.

The court identified and corrected several inadvertent mathematical and typographical errors in the calculation of the parties' net family property and date of marriage deductions, which resulted in a revised equalization payment.

The court also reconsidered the costs award, finding that the initial fixed sum was based on incomplete information regarding the respondent's legal dockets.

Consequently, the costs awarded to the respondent were increased.

The endorsement further provides directions for the proportionate payment of outstanding professional fees and shortfalls from the sale proceeds of the matrimonial home and cottage, given insufficient funds.

The appellant, Mikhail Khanine, appealed an order striking his pleadings in a family law dispute due to wilful non-compliance with multiple court orders, including a consent order for financial disclosure.

The Court of Appeal for Ontario dismissed the appeal, affirming that striking pleadings is an extraordinary remedy but justified in cases of egregious and exceptional wilful non-compliance with disclosure obligations, especially given the appellant's history of non-compliance and evasive tactics.

The court also addressed costs, awarding partial indemnity costs to the respondent.

The applicant brought a motion seeking interim spousal support, security orders against the respondent's estate, and an order for non-depletion of her equalization claim, citing urgency due to the respondent's terminal illness.

The court granted the motion to proceed before a case conference due to urgency and awarded interim spousal support of $547.00 per month, binding on the respondent and his estate.

However, the court declined to grant the additional security orders, noting the uncertain strength of the applicant's claims regarding spousal support delay and equalization limitation periods.

The interim support order was made reviewable in four months.

The applicant, Ernest Below, and the respondent, Stacy Sheene, disputed costs following motions concerning the children's habitual residence and removal from Ontario.

The court had previously ruled that Florida had jurisdiction over the children and ordered Mr. Below to return them to Ms. Sheene.

This endorsement addresses the costs of those motions.

Ms. Sheene, as the successful party, sought costs on a full recovery basis, alleging bad faith by Mr. Below.

Mr. Below argued for each party to bear their own costs or for partial indemnity.

The court found Ms. Sheene presumptively entitled to costs but rejected the claim for full recovery, finding no bad faith by Mr. Below.

The court quantified Ms. Sheene's costs on a partial indemnity scale, adjusting hourly rates for inflation and assessing the reasonableness of time spent and disbursements.

The appellant appealed the dismissal of his application under the Hague Convention on the Civil Aspects of International Child Abduction and the Children's Law Reform Act seeking a declaration that his daughter was habitually resident in Israel and was wrongfully retained in Canada by the respondent.

The application judge found that the parties had mutually agreed to change their habitual residence from Israel to Ontario while visiting Toronto, and that the appellant had subsequently consented to or acquiesced in Ontario as the daughter's habitual residence.

The Court of Appeal upheld the application judge's findings as factual determinations entitled to considerable deference, finding no palpable and overriding errors.

The appeal was dismissed with costs awarded to the respondent.

The respondent mother brought a motion to quash the appellant father's appeal from a trial judgment made in his absence.

The father had sought to reduce his child support obligation, end his spousal support obligation, and rescind support arrears.

The trial judge proceeded without the father, who was absent due to securing employment on his first day of work.

The mother argued the father must first bring a motion to set aside the trial order in Family Court before appealing to the Court of Appeal.

The Court of Appeal held that the trial court has jurisdiction under rule 25(19)(e) of the Family Law Rules to set aside an order, and that the proper procedural route was to bring a motion to set aside in Family Court rather than appeal directly to the Court of Appeal.

The applicant, Ernest Below, brought a motion for custody of the parties' two young children after the respondent, Stacy Sheene, moved with them from Florida to Ontario.

Sheene had returned to Florida for medical treatment, leaving the children with Below's parents, and intended to return to Florida with the children due to a breakdown in financial support and relationship with Below.

Below obtained a temporary order preventing their removal from Canada.

The court determined it lacked jurisdiction over the custody and access issues, finding that the children's habitual residence remained Florida.

The court declined to exercise jurisdiction under the Children's Law Reform Act, ordered the termination of the temporary order, and directed the children's return to Florida in Ms. Sheene's care, with Mr. Below responsible for travel expenses.

The applicant father sought the return of his daughter, Naomi Rachelle Unger, to Tiveria, Israel, under the Hague Convention on the Civil Aspects of International Child Abduction.

The family had travelled from Israel to Toronto for a vacation, after which the mother and child remained in Toronto.

The father argued that Israel remained the child's habitual residence and that the mother was wrongfully retaining her.

The mother contended that the parties had mutually agreed to change the child's habitual residence to Ontario, or alternatively, that the father had consented or acquiesced to her remaining in Ontario with the child.

The court found that the parties had a shared, settled intention to reside indefinitely in Ontario, thereby changing the child's habitual residence from Israel to Ontario.

Consequently, the Hague Convention did not apply.

Even if Israel were deemed the habitual residence, the court found that the father had unequivocally consented and/or acquiesced to the child remaining in Ontario.

The application for the child's return was dismissed.

The applicant brought a motion seeking interim child and spousal support and interim disbursements for a business valuation critique in a family law proceeding.

The primary issue was the respondent’s income for temporary support purposes, where the parties proposed significantly different income figures based on competing interpretations of corporate financial information.

The court accepted the respondent’s valuator’s income determination report prepared in conformity with Canadian Institute of Chartered Business Valuators standards and fixed the respondent’s income at $124,567 on an interim basis.

The court held that temporary support motions should avoid forensic accounting analysis where only one expert report is available.

Interim child support, mid-range spousal support, and partial interim disbursements to fund a critique report were ordered.

The respondent mother moved the child from Ontario to Alberta approximately two months after separation without notice to or consent from the applicant father.

The respondent argued that the court lacked jurisdiction because the child's habitual residence had changed to Alberta.

The court rejected this argument, finding that the child's habitual residence remained Ontario at the time the application was commenced.

The court held that a parent cannot unilaterally change a child's habitual residence by concealing a move and without the consent or acquiescence of the other parent, particularly when the period of de facto care is brief.

The respondent's motion to dismiss for lack of jurisdiction was dismissed.