Bryan R.G. Smith

The wife brought a motion seeking the release of $500,000 from the net proceeds of the sale of the matrimonial home to pay her legal and accounting fees.

The husband opposed the release and brought a cross-motion seeking to dismiss the wife's motion for alleged non-compliance with prior orders, requesting alternate security for his equalization claim, and seeking further disclosure and costs thrown away for cancelled questioning.

The court found the wife was not in breach of prior orders and granted the release of $500,000, noting the husband had already received a significant advance from the proceeds.

The court declined to order the wife to pledge her RRSP due to tax consequences but issued a general preservation order over her assets.

The court also ordered the wife to provide further disclosure, fixed dates for questioning, and awarded the husband $2,000 for costs thrown away.

This is a costs endorsement following an appeal where the respondent (N.) was entirely successful.

The respondent sought full indemnity costs of $99,500, reflecting a reduction from actual time incurred.

The appellant (F.) argued for each party to bear their own costs or for a reduced award, citing excessiveness and limited means.

The Court of Appeal found no special circumstances to warrant either full indemnity costs or no costs, ordering the appellant to pay the respondent $50,000 in all-inclusive costs, consistent with costs following the result and reasonable expectations.

The appellant wife appealed a summary judgment dismissing her application for equalization and spousal support, brought over a decade after their divorce.

She alleged the respondent husband misrepresented his financial position during their divorce negotiations, claiming $0 net worth while bank disclosures showed $21 million.

The Court of Appeal found the motion judge erred by: 1) allowing the summary judgment motion without the respondent filing a required answer and financial statement, which is crucial for financial disclosure in family law; and 2) misinterpreting the test for extending limitation periods under s. 2(8) of the Family Law Act, by requiring "established fraud" instead of the lower threshold of "apparent grounds for relief" and "good faith" delay.

The court emphasized the paramount importance of financial disclosure in family law proceedings.

The appellant mother brought a motion for a stay of proceedings related to the Court of Appeal's decision, pending her leave to appeal application to the Supreme Court of Canada.

The motion judge granted the stay, finding serious issues of public importance arising from the dissenting opinion, a risk of irreparable harm to the children if the stay was denied (potential separation from the primary caregiver and determination of parenting rights based on gender-based principles in a non-Hague Convention country), and that the balance of convenience favored granting the stay.

The stay was conditional on the mother filing her leave to appeal application within 45 days.

The appellant mother travelled to Ontario from Dubai with her two children for a visit, but subsequently informed the respondent father that she would not return.

The father commenced proceedings in Ontario seeking a return order under s. 40 of the Children's Law Reform Act.

The trial judge declined jurisdiction under ss. 22 and 23 of the Act, ordered the children returned to Dubai, and dismissed the mother's constitutional challenges to s. 40(3).

The Court of Appeal dismissed the mother's appeal, finding no palpable and overriding error in the trial judge's assessment of the risk of serious harm under s. 23, and upholding the constitutionality of the return order provision under both division of powers and the Charter.

The applicant sought a temporary without prejudice order for child and spousal support.

The respondent argued the motion was barred by a marriage contract that effectively waived spousal support.

The court found a triable issue regarding the enforceability of the contract under the Miglin framework, noting the applicant's inability to work due to cancer and caring for special needs children.

The court imputed an income of $965,000 to the respondent, who had become a non-resident for tax purposes, and ordered him to pay $3,952 per month in child support and $21,423 per month in spousal support, along with section 7 expenses.

This endorsement provides a clarification to an earlier ruling on a pre-trial motion.

The respondent (moving party) had sought to prevent the applicant from raising issues concerning the ownership, control, or valuation of Firm Capital Mortgage Corporation or Door to Door Investments Inc. (FCMC Companies) at trial.

The original motion was dismissed, allowing the applicant to raise these issues.

The clarification emphasizes that this permission does not dictate the manner in which these matters may be raised, the admissibility of evidence, or how evidence may be led.

It also clarifies that the ruling did not address the addition of Marilyn Dadouch or the FCMC Companies as parties, stating that such relief would require a separate motion.

The Respondent sought a pre-trial ruling to preclude the Applicant from raising issues related to the ownership, control, or valuation of certain companies (FCMC Companies) at trial.

The Respondent argued irrelevance, abuse of process due to a parallel civil action, issue estoppel from a prior disclosure motion, lack of necessary parties, and insufficient pleadings.

The court dismissed the Respondent's motion, finding the Applicant's claims relevant to net family property and support, no abuse of process as the legal issues differed from the civil action, no issue estoppel as the prior ruling was on disclosure, and no preclusion due to non-joinder of parties or insufficient pleadings, as the Respondent had clear notice of the issues.

Following a trial where the applicant father successfully obtained an order for the return of the parties' children to Dubai, the court determined the issue of costs.

The father sought $486,000 on a partial and full recovery basis, relying on an offer to settle.

The respondent mother argued for no costs or a significantly reduced amount due to her limited financial means.

The court found the father was entitled to costs and had beaten his offer to settle, but fixed costs at $250,000 on a partial indemnity basis to ensure the award was proportionate and within the mother's reasonable expectations and ability to pay.

In a family law trial concerning whether two young children should be returned to Dubai, the respondent mother brought an application to adduce expert opinion evidence from a psychotherapist.

The proposed evidence concerned the potential emotional and psychological impact on infants separated from their primary caregiver.

The applicant father opposed the admission of the evidence.

Following a voir dire, the court applied the test for expert evidence and found the proposed expert was properly qualified and capable of giving fair, objective, and non-partisan evidence.

The court granted the application, permitting the expert to testify strictly on the potential impact of separation from a primary caregiver, but prohibited her from opining on the specific attachment of the children to either parent.

The appellant wife sought damages for conspiracy against her husband and his family, alleging they diverted business proceeds to reduce her support payments.

The motion judge granted partial summary judgment dismissing the conspiracy claim and awarded substantial costs against the wife.

On appeal, the Court of Appeal found that the motion judge erred by improperly bifurcating issues, misapplying the tort of conspiracy in the family law context, and making palpable factual errors regarding critical evidence.

The Court emphasized that the tort of conspiracy is a valuable tool to deter non-disclosure and ensure collectibility of judgments in family law.

The appeal was allowed, the partial summary judgment and associated costs orders were set aside, and a new trial was ordered before a different judge.

The father brought an application under the Hague Convention for the return of his two young children to Massachusetts, their habitual residence, after the mother wrongfully retained them in Ontario following a consented visit.

The court found that Massachusetts was the children's habitual residence, the father had custody rights which he was exercising, and the mother's retention was wrongful due to deceit.

The court dismissed the mother's defence of grave risk of harm, finding the alleged abuse insufficient to meet the high threshold.

The children were ordered to be returned to Massachusetts.

This endorsement confirms Justice Diamond's appointment as the case management judge for the proceeding.

It addresses the scheduling of a long motion concerning jurisdiction (Ontario or Massachusetts) and a potential Hague Convention application for the return of children to Massachusetts.

The judge directs that the Hague Convention application should ideally proceed earlier and separately from the jurisdiction issue.

This is a costs decision on appeal from a family law matter.

The appellant (father) sought to stay family law claims pending resolution of a constitutional challenge under s. 35 of the Constitution Act, 1982.

The motion judge struck the amended answer as lacking proper pleading of the constitutional claim.

On appeal, the Court of Appeal allowed the appeal in part, granting leave to amend the answer but refusing to stay the interim support order or the family law claims.

The respondent (mother) was found to be more successful on the appeal.

The court awarded costs to the respondent in the amount of $20,000, inclusive of the costs of a stay motion and all disbursements and HST.

The respondent in matrimonial litigation moved to have the former case management judge recuse himself due to a reasonable apprehension of bias.

The new case management judge dismissed the motion, finding it premature and pointless as the former judge was not scheduled for future involvement.

The court determined the respondent had an ulterior motive to revisit prior rulings and that the motion constituted an abuse of process, contrary to the Family Law Rules' objectives of saving time and expense.

The appellant appealed a costs award of over $300,000 made by the motion judge in family law proceedings.

The motion judge had awarded costs to the respondent following a successful motion to strike the appellant's answer on the basis that a constitutional issue was not properly pleaded.

The Court of Appeal allowed the appeal on the merits, which provided the appellant with the opportunity to amend his answer.

The respondent remained entitled to costs of the original motion, but the costs award was reduced from over $300,000 to $200,000.

The court found that the motion judge erred in principle by adopting a "close to full recovery" approach, giving undue weight to settlement offers in circumstances where settlement was not practically possible, inappropriately increasing costs based on the appellant's ability to pay and the respondent's financial need, and failing to apply the proportionality principle required by the Family Law Rules.

Two members of the Haudenosaunee (Six Nations of the Grand River) brought a family law dispute regarding custody, child support, and spousal support.

The respondent raised a constitutional claim under s. 35 of the Constitution Act, 1982, asserting an Aboriginal right to have the dispute resolved through Haudenosaunee governance processes and laws rather than Ontario family law.

The motion judge struck the constitutional claim without leave to amend and dismissed it as lacking standing and justiciability.

The appellant appealed.

The Court of Appeal allowed the appeal in part, setting aside the dismissal of the constitutional claim and permitting the appellant to seek leave to amend his pleading.

The court held that while the constitutional claim faced serious obstacles, it was premature to dismiss it summarily at an early stage of proceedings.

The court also refused to stay the family law proceedings and permitted interim support orders to continue pending resolution of the constitutional claim.

This costs endorsement followed a motion with divided success.

The applicant succeeded on minor issues (dismissing a sealing order motion), while the respondent succeeded on the major issue (establishing privilege over documents and obtaining an order for their delivery/destruction).

The court found the major issue occupied significantly more time.

Applying Family Law Rule 24(6), the court apportioned costs, awarding them to the respondent due to greater success on the major issue.

The applicant's failure to provide a costs outline, while criticizing the respondent's counsel's time investment, was noted as an 'attack in the air'.

The respondent's costs outline was deemed reasonable given the complexity and effort involved.

The applicant was ordered to pay the respondent $81,275.65 in costs.

The respondent, Eli Dadouch, brought a motion seeking the return and destruction of solicitor-client privileged notes surreptitiously photographed by the applicant, Anita Bielak, and for orders sealing the court file and restraining the applicant from discussing the litigation with their adult children.

The court found the notes to be privileged and ordered their return and destruction.

However, the court dismissed the requests for a sealing order and a gag order, emphasizing the principle of open courts and the impracticality of such an order given the adult children's awareness and the need for therapeutic, not legal, intervention for their distress.

The appellant husband appealed the trial judge's decision to set aside a separation agreement on the grounds of material misrepresentation regarding the value of his company, Renegade Capital Corporation, at the date of marriage.

The husband had valued Renegade at $7.6 million using book value, when the trial judge found it was worth nil based on market value analysis.

The trial judge also recalculated the equalization payment and awarded retroactive child support.

The Court of Appeal upheld the trial judge's decision, finding that the husband had breached his disclosure obligations and materially misrepresented his assets.

The court affirmed that the duty to disclose includes the duty to fairly value assets, and that the onus is on the party disclosing to establish the recipient's actual knowledge of any falsehood.