Daryl Gelgoot

The parties separated after a 32-year marriage.

Before the marriage, the respondent wife received shares in her father's business.

During the marriage, an estate freeze was executed, transferring the growth value of the shares to a new family trust settled by her father for $100.

The trial judge, feeling bound by prior appellate jurisprudence, excluded the wife's interest in the trust from her net family property as a gift after marriage.

The Court of Appeal allowed the appeal in part, distinguishing the prior case and holding that the trust interest was traceable to the pre-marital gift.

The trust interest was included in net family property, but the equalization payment was reduced to $18 million under s. 5(6) of the Family Law Act due to unconscionability.

Retroactive spousal support was ordered, but prospective support was denied.

The trial costs award against the appellant husband was upheld.

The court determined costs following a motion and cross-motion regarding parenting time and decision-making.

The applicant father sought substantial parenting time, while the respondent mother sought a restrictive schedule and sole decision-making.

The court found that success was divided, as neither party achieved their primary positions.

Consequently, the court ordered that each party bear their own costs.

The father brought a motion for a defined parenting schedule with the parties' three-year-old son, and the mother brought a cross-motion seeking sole decision-making responsibility and child support.

The court declined to make a temporary order on decision-making, finding it was not a pressing issue, but ordered the mother could enrol the child in Junior Kindergarten.

On parenting time, the court declined to apply the AFCC-O Parenting Plan Guide as a mandatory benchmark, disagreeing with the Divisional Court's apparent elevation of the Guide in Tremblay-Chartier v. Blanchette.

The court ordered a four-week rotating schedule giving the father midweek overnight and alternate weekend parenting time, balancing the child's need for stability against meaningful contact with the father in light of family violence allegations and the father's remedial steps.

This costs decision follows a complex family law trial between Barbara Lang-Newlands and Ian Newlands.

The court reviews the parties’ conduct, settlement offers, and relative success on issues, ultimately awarding the applicant, Barbara, $2,800,000 in costs.

The decision details the application of the Family Law Rules regarding offers to settle, the reasonableness of the parties’ behaviour, and the principles guiding costs awards in family law litigation.

The Court of Appeal for Ontario considered a motion by Barbara Lang-Newlands regarding the operation of the automatic stay under rule 63.01 of the Rules of Civil Procedure following a family law trial judgment.

The court addressed whether certain monetary awards (post-separation adjustments) should be characterized as support and thus exempt from the stay, and whether the stay should be lifted or maintained on various payments pending appeal.

The court declined to recharacterize the payments as support, but exercised its discretion to lift the stay on Ian Newlands' obligation to pay post-separation adjustments, given the risk that Barb would not recover the funds if the stay remained.

The court ordered Barb to pay Ian the net difference and expedited the appeal.

The parties separated after a 32-year marriage.

The applicant's father had established a highly successful business.

Before the marriage, the father settled a trust holding shares in the business for the applicant.

During the marriage, the applicant received the shares and later participated in an estate freeze, transferring the shares to a holding company in exchange for preferred shares, while a new trust (the NFT) acquired the common shares.

The applicant and her children were discretionary beneficiaries of the NFT.

The main issue was whether the applicant's interest in the NFT was property subject to equalization, and if so, whether it was excluded as a gift.

The court found the interest was property, but bound by the Court of Appeal's decision in Shinder v. Shinder, held it was an excluded gift.

The court also determined the valuation of various assets, dismissed the respondent's unjust enrichment claim to a cottage, and ordered the applicant to pay an equalization payment of $1.18M and needs-based spousal support of $25,649 per month.

The adult children of the parties brought a motion to be added as third parties to a long-standing family law application, asserting that their interests as discretionary beneficiaries in a family trust (Newlands Family Trust) could be prejudiced by decisions made at the upcoming trial.

The motion was filed on the eve of a six-week trial.

The court dismissed the motion, finding no compelling explanation for the significant delay in bringing the application, and noting the uncertainty regarding the children's standing and the prematurity of their purported cause of action, as discretionary beneficiaries do not possess a direct property interest in trust assets prior to appropriation.

The court emphasized that adding parties late in proceedings should be exercised sparingly and only when demonstrably necessary for the just determination of the litigation.

Costs were awarded against the moving parties.

The applicant mother sought temporary orders for sole decision-making authority for the child, and to dispense with the respondent father's consent for the child's passport renewal and international travel.

While the father consented to the passport and travel issues after the motion was served, the court proceeded to determine the interim decision-making issue.

The court granted the mother sole decision-making authority, finding that the father's abusive communication, non-compliance with previous orders, and general unwillingness to co-parent made joint decision-making impossible and contrary to the child's best interests.

Costs were awarded to the applicant.

The appellant appealed an order directing the sale of a vacant property solely owned by the respondent, where the parties had previously cohabited.

The appellant argued the sale should be delayed until the validity of their cohabitation agreement, which contained a purchase option, was determined at trial.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that the respondent should not be forced to pay significant monthly maintenance for an unused property, especially since the sale proceeds would be held in trust pending final resolution.

The respondent husband brought an interim motion seeking spousal support and the release of funds from the sale of the matrimonial home to fund his litigation and business expenses.

The court found the respondent demonstrated a prima facie case of need for non-compensatory support, imputing a minimum wage income to him and ordering the applicant to pay $2,082 per month.

The court declined to release the full requested funds from the home sale due to the respondent's failure to provide business disclosure, but ordered $15,000 released specifically to pay his accountant to obtain and disclose those records.

The applicant sought partial summary judgment to dismiss the respondent's claim to set aside a cohabitation agreement.

The respondent argued the agreement should be set aside due to unconscionability, undue influence, duress, and inadequate financial disclosure, stemming from alleged coercive control during their 18-year common law relationship.

The court found that there was a genuine issue requiring a trial, particularly concerning the credibility of the parties and the nature of their relationship, which could not be resolved on a paper record.

The applicant's motion for summary judgment was dismissed.

On a family law interim motion, the court refused an adjournment and proceeded to determine temporary support despite an outstanding cross-motion concerning parenting and other relief.

In assessing income for support purposes, the court rejected a substantially reduced revised income report prepared for the respondent and adopted a compromise annual income figure of $525,000.

The court also imputed $30,000 of annual income to the applicant, on a without prejudice basis, having regard to her prolonged absence from the workforce, recent school-entry of the youngest child, and evidence bearing on work capacity.

Interim child support, spousal support, and section 7 contributions were ordered, with the respondent also required to share carrying costs of the matrimonial home pending sale.

The appellant brought a motion for leave to appeal an order dated June 7, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the respondent.

The applicant brought a motion to compel the sale of a jointly owned property in the context of ongoing family litigation.

The respondent opposed the sale, arguing it would be contrary to the children's best interests and that she wished to purchase the applicant's interest if successful in her equitable claims at trial.

The court granted the motion, finding that the property was not the principal residence of either party, the applicant was incurring significant carrying costs, and the sale would not negatively impact the children.

The court ordered the property sold and the net proceeds paid into court.

In a family law proceeding involving claims for child support and a constructive trust, both parties brought motions to compel answers to undertakings, under advisements, and refusals from their respective Questionings.

The court applied the principles of relevance and proportionality under the Family Law Rules to determine which questions must be answered.

The court ordered the applicant to provide various financial documents, including business ledgers subject to a non-disclosure agreement, and ordered the respondent to disclose legal and accounting fees, while dismissing requests for irrelevant banking and business interference information.

The applicant appealed two arbitration awards.

The court partially granted the appeal regarding a property expense accounting issue (declaring the award a nullity due to lack of written agreement for jurisdiction) and dismissed the appeal regarding children's expenses.

This endorsement addresses costs.

The court found divided success but noted the applicant's unreasonable conduct in challenging jurisdiction on appeal after previously agreeing to arbitration.

Despite partial success, the applicant was deprived of costs for the issue she won, and the respondent was awarded $10,000 in costs for the issue he won, reflecting the applicant's unreasonable conduct and the respondent's more reasonable settlement efforts.

The applicant appealed two arbitration awards concerning family law matters, challenging the arbitrator's originating jurisdiction and whether he exceeded his authority.

The court held that the arbitrator had originating jurisdiction based on the parties' separation agreement and minutes of settlement, despite the absence of a separate prescribed family arbitration agreement, but noted that such awards are not enforceable without regulatory compliance.

The appeal regarding children's expenses was dismissed, upholding the arbitrator's decision.

However, the appeal concerning the Forest Hill property expenses was allowed, as the arbitrator exceeded his jurisdiction on that issue because the agreement to arbitrate it was not in writing as required by the separation agreement.

The moving party sought leave to appeal a lower court decision dated May 21, 2021.

The Divisional Court dismissed the motion for leave to appeal in writing and ordered the moving party to pay costs of $3,600 to the responding party.

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.