Anita K. Kania

This appeal concerned the interpretation of a separation agreement's reconciliation clause and its effect on a pension waiver.

The parties had separated, entered into an agreement, reconciled for almost nine years, and then separated again.

The separation agreement stipulated that it would become void if reconciliation lasted more than 90 days, with an exception for "any payment, conveyance or act" made or done pursuant to the agreement.

The trial judge found the wife's specific release of her rights to the husband's Canada Post pension survived reconciliation.

The Court of Appeal found the trial judge erred by misapprehending the evidence (no payment was made for the pension entitlement) and by failing to give effect to the express voiding term of the reconciliation clause.

The Court clarified that the pension release was voided, entitling the wife to a share of the pension from the date of marriage.

This case addresses the valuation of a husband's pension and the method of equalization payment following a second separation after a reconciliation.

The primary issue was whether a 2002 separation agreement, which included a specific release of the wife's interest in the husband's pension, remained effective despite a subsequent reconciliation and a clause stating the agreement would become void after 90 days of cohabitation for reconciliation.

The court found that the specific release of the pension interest survived the reconciliation, limiting the wife's claim to the pension's increase in value from the date of reconciliation to the final separation.

The court also ordered the equalization payment to be made in cash rather than a pension rollover, considering the wife's financial needs and the husband's liquidity.

The applicant sought various orders, including a declaration that the respondent was in breach of a prior disclosure order, imposition of sanctions, a civil restraining order, interim disbursements, an advance on equalization, and life insurance designation.

The court found the respondent in willful breach of the disclosure order for failing to provide a business valuation and income analysis.

As a sanction, the respondent was ordered to make significant payments to the applicant.

The requests for a restraining order and advance payments were dismissed without prejudice due to conflicting evidence and insufficient information, respectively.

The life insurance designation request was adjourned.

The moving party father applied to vary a 2005 consent order to terminate child support for two adult children, reduce support for the youngest child, and rescind arrears of approximately $55,000.

The responding party mother opposed the reduction and rescission.

The court noted that the 2005 order permitted the filing of minutes of settlement with the Family Responsibility Office but did not explicitly order child support.

The court raised concerns about its jurisdiction to vary the agreement under the Family Law Act, as the agreement was not filed in the Ontario Court of Justice or the Family Court branch.

The court adjourned the motion to invite submissions from the Family Responsibility Office on the jurisdictional issue.

A custody and access application concerning a child born in January 2010.

The mother sought sole custody and the right to have the child reside with her in Brampton, while the father sought custody or, alternatively, joint custody with the child residing in Mansfield.

The court granted joint custody with the child residing primarily with the mother in Brampton, determined that the child would attend school in Brampton, established a time-sharing schedule based on the father's rotating shift work, and ordered child support of $475 per month with a credit for travel costs.

The mother brought a motion to change the father's access to their two children from unsupervised to supervised, and to dispense with his consent for the children to travel outside Canada.

The father brought a cross-motion seeking to use his share of the matrimonial home's sale proceeds to pay his criminal defence costs.

The court dismissed the mother's request for supervised access, finding no exceptional circumstances to justify restricting the father's access, but ordered that access exchanges occur through a third party or supervised access centre to minimize conflict.

The court granted the mother permission to travel with the children subject to notice requirements.

The father's request to use the sale proceeds for his legal defence was dismissed, as the funds were needed to secure his future child support obligations.

The applicant mother brought a motion for summary judgment seeking sole custody of Daniel Pedersen and supervised access for the respondent father.

The respondent father opposed the motion, arguing that custody and access issues were triable matters.

The court found that after more than four years of acrimonious litigation, the outcome was a foregone conclusion based on clinical assessments and the children's best interests.

The court granted summary judgment, awarding sole custody of Daniel to the mother with supervised access to the father, and sole custody of Erika to the father with access to the mother as agreed.

Motion to change a child support order originally made in February 2005.

The applicant mother sought to increase child support from $493.00 per month based on evidence that the respondent father had substantially underreported his income at the time of the original order.

The respondent, a self-employed welder, claimed income of only $33,300 per year despite gross business revenues exceeding $100,000 annually and a prior disclosed income of $91,000.

The court found the respondent's financial disclosure inadequate and unreliable, with evidence of personal expenses written off as business deductions, undisclosed cash income, and a lifestyle inconsistent with reported earnings.

The court imputed income of $90,000 per annum and ordered retroactive support arrears.