Daniel W. Simard

The applicant brought a motion for a temporary restraining order against the respondent under section 46 of the Family Law Act following a history of alleged domestic violence.

The respondent had recently been acquitted of criminal assault charges against the applicant and their daughter, though the trial judge found him probably guilty.

Applying the Supreme Court of Canada's decision in Malik, the court admitted the factual findings from the criminal trial and accorded them significant weight.

Finding that the applicant had reasonable grounds to fear for her physical and psychological safety, the court granted the restraining order.

The applicant brought a motion for interim relief in a family law proceeding characterized by the respondent's significant financial nondisclosure.

The court ordered the respondent to pay $50,000 in interim disbursements to allow the applicant to retain financial and tax experts to value complex corporate assets.

The court also imputed income to the applicant and ordered the respondent to pay $5,500 per month in interim spousal support, retroactive to January 1, 2019.

Finally, the respondent was ordered to designate the applicant as an irrevocable beneficiary on a $250,000 life insurance policy to secure the interim support obligation.

The applicant father brought a motion seeking the appointment of the Office of the Children’s Lawyer (OCL) to prepare a Voice of the Child Report or to represent his two sons, following his motion to change a final consent order regarding custody and parenting time.

The respondent mother opposed on procedural grounds, alleging the father lacked leave and was in contempt of an equalization payment order, and on substantive grounds, arguing another OCL report was not in the children's best interests given a recent assessment and their current well-being.

The court found the father had obtained the necessary leave and was making progress towards complying with the equalization order.

However, the motion for OCL involvement was dismissed, as the court determined it would not be in the children's best interests, emphasizing the importance of minimizing their exposure to ongoing family conflict and disruption.

In this matrimonial appeal, the respondent wife moved to stay the appellant husband's appeal pending payment of an equalization amount of $334,076.84 ordered by Nordheimer J.A. The appellant had failed to comply with the payment order despite the 60-day deadline having passed.

The motion judge found that the appellant had deliberately and wilfully ignored the court order, preferring to prioritize his Canadian business interests over his matrimonial obligations.

The motion judge granted the stay of the appeal and gave the respondent leave to move forthwith to quash or dismiss the appeal for non-compliance.

Costs were awarded to the respondent.

The trial addressed property and spousal support issues between divorcing spouses.

The applicant husband sought a beneficial interest in the matrimonial home, an equalization payment, and spousal support.

The respondent wife sought an unequal division of net family properties and denied spousal support.

The court dismissed the husband's claims for a beneficial interest in the matrimonial home and spousal support, finding him not credible regarding his financial affairs.

The wife's claim for an unequal division of net family properties was also dismissed, as the circumstances did not meet the high threshold of unconscionability.

The wife was ordered to pay the husband an equalization payment of $87,171, to be satisfied from her share of the parties' jointly owned Jamaican properties.

Aysha Muzaffar (Respondent mother) brought a motion to vary an interim parenting schedule and to order a s. 30 assessment under the Children's Law Reform Act.

Aftab Sheikh (Applicant father) opposed the motion, arguing no material change in circumstances was required for variation of the initial "temporary temporary without prejudice" order, and that the assessment was unnecessary.

The court found that the existing schedule was in the children's best interests and that a s. 30 assessment was not warranted due to a lack of cogent evidence for disruption or clinical issues.

Aysha's motion was dismissed.

The parties disputed the date of separation and the equalization of net family property following their marriage breakdown.

The applicant claimed a separation date of September 2015, while the respondent claimed May 2015 when he discovered the applicant's extra-marital affair.

The court found the applicant's evidence lacked credibility and accepted the respondent's separation date of May 20, 2015.

The court also found the respondent had a 50% beneficial interest in a condominium in Taiwan registered in the applicant's name, applying the presumption of resulting trust.

However, the court accepted that a $400,000 payment to the applicant's father from the sale of a property was a valid debt deduction for the applicant.

The applicant was ordered to pay an equalization payment and a share of post-separation property expenses.

The applicant succeeded on all relief sought in cross-motions, including interim custody, an order dispensing with the respondent's consent for the children's schooling, and the dismissal of the respondent's motion to compel the children's delivery to Arizona.

The court found the applicant to be a clear winner and entitled to costs, noting that the applicant had made a timely and comprehensive offer to settle that was more favourable than the outcome.

The respondent was ordered to pay the applicant's costs on a full indemnity basis.

The applicant sought interim custody of the parties' two children under the Children's Law Reform Act.

The respondent challenged the Ontario court's jurisdiction, arguing the children should be sent to Arizona.

The court found it lacked jurisdiction under s. 22(1)(a) and (b) as the children were not habitually resident in Ontario and lacked a real and substantial connection.

However, under s. 40(b), the court made an interim custody order in the applicant's favour, finding it in the children's best interests to remain with the primary caregiver.

The court stayed the application, ordering the respondent to commence proceedings in Qatar (the children's habitual residence) by October 1, 2016, failing which he would be deemed to acquiesce to Ontario's jurisdiction.

The respondent's motion to send the children to Arizona was dismissed.

The respondent father sought costs of $5,000 against the applicant mother arising from a temporary parenting motion regarding their three-year-old child.

The mother had sought to reduce the father's overnight access, restrict his alcohol consumption while parenting, and impose monitoring provisions.

The court found divided success on the motion with the father being slightly more successful overall.

The court awarded costs to the father in the amount of $1,000, inclusive of fees, disbursements and HST, considering the reasonableness of both parties' behaviour, the legitimate concerns raised, and the father's settlement offer made six days before the hearing.

The respondent sought to relocate with the parties' child from Ontario to Calgary, Alberta to be with her fiancé who had employment there.

The applicant opposed the relocation.

The court found that while a material change in circumstances existed (the fiancé's inability to find employment in Ontario), the relocation would not be in the child's best interests.

The child had strong, meaningful relationships with both parents, extended family, and friends in Ontario.

The proposed move would significantly curtail contact with the access parent and disrupt the child's established life.

The court dismissed the motion to change.

The plaintiff moved for summary judgment in a breach of contract action and delivered an additional affidavit shortly before the hearing after the defendant had cross-examined the plaintiff’s initial affiant.

The defendant objected to the late affidavit and alternatively sought leave to file responding affidavit evidence.

The court held that Rule 39.02 of the Rules of Civil Procedure only restricts further affidavits from a party who conducted the cross-examination, which did not apply to the plaintiff.

However, the court exercised its discretion to grant the defendant leave to file a responding affidavit because the new affidavit addressed weaknesses revealed during cross-examination.

The plaintiff’s affidavit was admitted and the defendant was permitted to respond.

The applicant father sought reconsideration of the court's costs decision via a 14B motion.

The court rejected the reconsideration request, finding no merit to it.

The judge upheld the original costs award of $8,000 payable by the father to the mother, rejecting the father's solicitor's arguments that his revised submissions were more appropriate.

The judge noted that the solicitor's original submissions, which contained inappropriate allegations against opposing counsel, remained part of the court record and could not be disregarded.

The judge clarified that the costs award was not a penalty against the father's client for the solicitor's conduct, but rather reflected the substantive merits of the costs application.

The respondent mother sought costs following a successful motion on the issue of jurisdiction.

The applicant father had filed a separation agreement in the Ontario Court of Justice and sought to vary it, but subsequently argued the court lacked jurisdiction.

The court found the father's conduct unreasonable in filing the application without first determining the proper forum.

The court awarded costs to the mother at $8,000 inclusive of HST, payable within 60 days, representing near full recovery based on 45 hours at $200 per hour plus disbursements.

The applicant father sought to vary a separation agreement filed in the Ontario Court of Justice in 2007, seeking sole custody and a change in child support obligations.

The respondent mother opposed the motion and sought an increase in spousal support.

The father argued that the Ontario Court of Justice lacked jurisdiction because a subsequent divorce proceeding in the Superior Court of Justice in 2008 had directed corollary relief matters to proceed in that court.

The court held that the Ontario Court of Justice retained exclusive jurisdiction to vary the separation agreement filed pursuant to section 35(1) of the Family Law Act, as the Superior Court order was procedural only and the parties had abandoned the Superior Court proceedings through their subsequent inaction and actions in the Ontario Court.

The appellant husband sought leave to appeal an interlocutory order requiring him to pay spousal support of $2,800 per month based on his 2011 income.

He argued the support should have been based on his projected 2012 income.

The court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the interlocutory order and noting that appeals from interlocutory family matters are discouraged.

The court awarded costs of $5,000 to the respondent wife.