Bryan R.G. Smith

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.

The applicant sought to adjourn the scheduled trial date in a complex family law and trust proceeding.

The respondent opposed the adjournment.

The court found that the trial date had to be vacated because the parties were not ready, there had been no meaningful settlement conference, and updated financial statements had not been provided.

The court vacated the trial date and scheduled a case conference to set a new timetable and trial date.

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.

The applicant sought costs of over $1 million and pre-judgment interest following a complex 19-day family law trial where she was largely successful.

The court rejected the applicant's claim for full recovery costs based on bad faith, finding the respondent's conduct unreasonable but not reaching the threshold of bad faith.

The court awarded the applicant $936,625 in costs and $195,000 in pre-judgment interest, noting the respondent's unreasonable litigation conduct increased the complexity and length of the proceedings.

The applicant sought a non-dissipation and preservation order under sections 12 and 40 of the Family Law Act to restrain the respondent from dealing with assets, particularly shares in his private corporations, pending trial.

The court considered the strength of the applicant's case, balance of convenience, and irreparable harm.

While the applicant had an unassailable claim for spousal support and an arguable case for an equalization payment, the court found no risk of dissipation by the respondent, who had complied with temporary support orders and demonstrated efforts to grow his business.

Granting the order would severely cripple the respondent's companies, causing irreparable harm.

The motion was dismissed, and the applicant was ordered to pay agreed-upon costs, to be set off against future payments.

The applicant wife sought to set aside a 2008 separation agreement, alleging the respondent husband deliberately misrepresented the value of his business interests at the date of marriage to eliminate his equalization payment obligation.

The court found the husband, an astute investor, intentionally failed to disclose that the market value of his holding company's investments was significantly lower than the book value he presented.

The separation agreement was set aside under s. 56(4) of the Family Law Act.

The court determined the parties' net family properties, finding the husband's date of marriage business value was nil, and ordered him to pay an equalization payment of $1,055,758.

The court also awarded retroactive child support of $345,000 and compensatory spousal support of $475,000, imputing significant corporate pre-tax income to the husband.

The applicant sought costs of $25,000 following a successful motion for temporary spousal and child support.

The respondent conceded the applicant's entitlement to costs but argued for a reduced amount of $18,386 due to duplication of counsel and divided success on other issues, such as the sale of properties.

The court agreed with the respondent's proposed reductions for duplication of work and noted the divided success.

The court ordered the respondent to pay costs of $19,199 to the applicant.

The applicant brought an urgent motion for temporary exclusive possession of the matrimonial home following a dispute, after which she left the home with the children.

The respondent brought a cross-motion for exclusive possession or, alternatively, a nesting arrangement.

The court found that the children were not at risk of harm and that both parents were involved caregivers.

The court dismissed both motions for exclusive possession and ordered a temporary nesting arrangement where the parents would rotate occupying the home with the children.

In a high‑income family law proceeding, the applicant sought temporary child and spousal support following separation.

The respondent argued his income had fallen significantly due to banking restrictions and business challenges and urged the court to base support on a projected income of approximately $1.6 million rather than his prior line 150 income exceeding $5 million.

The court held that, on an interim motion without oral evidence or credibility findings, the respondent had not established that his proposed lower income fairly reflected the money available for support under the Child Support Guidelines.

The court therefore relied on the respondent’s 2014 line 150 income to calculate temporary support.

Temporary child support and spousal support were ordered accordingly.

The parties separated after a 16-year marriage.

The respondent was originally ordered to pay $800 per month in spousal support, an amount reduced due to high child support obligations.

After the children became adults, the respondent successfully moved to terminate child support, and the motion judge continued spousal support at $800 per month.

The appellant appealed, seeking an increase.

The Court of Appeal allowed the appeal, finding the motion judge erred in assessing the appellant's need, denying compensatory support, and failing to apply the Spousal Support Advisory Guidelines.

Spousal support was increased to $2,720 per month.

Appeal from a family law summary judgment dismissing an application to set aside a separation agreement based on alleged material misrepresentation of date-of-marriage business assets affecting equalization.

The court held that, once deliberate material misrepresentation was assumed, the motion judge erred by shifting the onus to the recipient spouse to investigate the veracity of the disclosure; the burden remained on the disclosing spouse to prove actual knowledge of the falsehood.

The record contained genuine issues requiring a trial regarding the extent and deliberateness of the non-disclosure, the recipient spouse's actual knowledge, and related claims concerning spousal support, undue influence, duress and unconscionability.

The only issue finally resolved against the appellant was the claim that the agreement was unenforceable for lack of proper witnessing under s. 55(1) of the Family Law Act.

The appeal concerned whether an unjust enrichment claim seeking a remedial constructive trust over real property was governed by the ten-year limitation period in s. 4 of the Real Property Limitations Act or the two-year regime in the Limitations Act, 2002.

The court held that such a claim is an action to recover land because it seeks to obtain an interest in land by judgment, and that an alternative monetary remedy advanced in the same proceeding shelters under the same provision.

Although the motion judge erred in concluding that a legislative gap would otherwise exist, the court held that the Limitations Act, 2002 applies to equitable claims generally.

The appeal from the dismissal of summary judgment was dismissed.