David K. Sherr

The respondent husband brought a motion for partition and sale of the matrimonial home to obtain funds for legal expenses and to continue making support payments.

The applicant wife opposed the motion, arguing that she had established a prima facie case for a vesting order to satisfy her claims for equalization and spousal support, and that the sale would prejudice her rights.

The court found that the wife had established a prima facie case for substantial equalization and retroactive spousal support payments exceeding the husband's equity in the home, and that the wife would suffer prejudice if the home were sold before trial.

The motion was dismissed.

This decision concerns the return of an urgent motion made without notice by Dana-Paula Caringi, seeking preservation and disclosure orders regarding property and bank accounts associated with Mauro Caringi and a third party, Ms. Brown, in the context of family law proceedings.

The court reviews the orders previously granted without notice, analyzes the legal basis for preservation and Norwich orders, and ultimately declines to grant the requested relief, finding the necessary legal and evidentiary thresholds unmet.

The court also addresses costs and removes the matter from the trial list.

The appellant, Manjunath C. Kuppa, appealed an order striking his pleadings (and those of two other respondents) due to persistent non-compliance with court orders and non-disclosure in a family law proceeding.

The Court of Appeal dismissed the appeal, affirming that striking pleadings was an appropriate remedy in these exceptional circumstances, consistent with the Family Law Rules' objective of dealing with cases justly, especially when lesser remedies had proven futile.

The court also ordered the appellant to pay costs on a full indemnity basis.

This appeal arose from a family law dispute concerning spousal support and costs.

The appellant challenged the trial judge's refusal to impute a higher income to the respondent, the quantum of spousal support awarded at the high-end of the guidelines, and the award of full recovery costs.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings regarding income imputation or her legal conclusions on spousal support and costs.

The court affirmed the trial judge's discretion and the high threshold for appellate intervention on factual matters.

The applicant mother brought a motion for temporary ongoing child support, retroactive child support arrears, and financial disclosure.

The court ordered temporary child support based on the respondent father's actual income of $39,600, declining to impute a higher income.

The issue of retroactive child support was adjourned to trial due to the complex financial history, including the applicant's unilateral refinancing of the matrimonial home.

The court ordered a process for resolving the remaining disclosure issues and awarded the applicant $7,000 in costs based on divided success.

The father brought a motion to change a 2016 joint custody order, initially seeking decision-making authority over the child's education, but later amending to seek sole custody and primary residence.

The mother opposed the motion and sought to reinstate an earlier 2013 order granting her sole custody.

The court found material changes in circumstances, including the mother's refusal to allow the child to participate in school activities, increasingly disturbing allegations by the mother (including unfounded claims of poisoning), the mother's refusal to cooperate with the Children's Lawyer, and evidence of the child's deteriorating mental health and distress.

The court granted the father sole custody with access to the mother in the father's discretion, ordered counselling for the child, and directed the Children's Aid Society to support the father in managing access and considering supervised access if necessary.

The Applicant, Ms. Diamond, sought full recovery of $348,624 in legal and expert fees following her success on key issues of spousal support, income for support, and pension division after an 11-day trial.

The Respondent, Mr. Berman, argued for divided success and sought $74,623 in costs.

The court addressed Mr. Berman's excessive costs submissions, affirming the importance of page limits.

It found Ms. Diamond entitled to costs due to her overall success and Mr. Berman's unreasonable litigation conduct, including his self-representation for much of the proceeding and rigid positions.

However, the court declined to award Mr. Berman costs and reduced Ms. Diamond's claim, finding her unreasonable in failing to accept a mid-trial severable offer regarding pension division.

The court also established a general principle against recovering costs for multiple counsel.

Ms. Diamond was ultimately awarded $180,800 in costs.

This decision addresses urgent motions concerning child access during the COVID-19 pandemic.

Following a previous order for the respondent to have access, the applicant failed to comply, leading the respondent to seek enforcement and directions for contempt.

The applicant argued that formal orders had not been served and requested an independent assessment of the child's wishes.

The court rejected the applicant's arguments, finding that she did not take sufficient steps to ensure access and that the child's alleged unwillingness was not independent.

The court emphasized the custodial parent's positive obligation to facilitate access and issued orders for continued access, with police enforcement if necessary, along with procedural directions for future hearings and costs.

The Respondent father brought an urgent motion to restore in-person access to the child, which the Applicant mother had unilaterally suspended due to the COVID-19 pandemic and concerns for her elderly parents and the child's health.

The Applicant brought a cross-motion to formalize the video-only access.

The court found the Respondent's motion urgent, rejected the Applicant's reasons for withholding access, and granted the Respondent's motion, dismissing the Applicant's cross-motion.

The court emphasized the importance of in-person contact and adherence to court orders, noting the Applicant's history of non-compliance.

The case involved a high-conflict family law trial following a 27-year marriage.

Key issues included spousal support entitlement and quantum, imputation of income to the applicant, division of vehicles, and the division of a federal pension at source.

The court found the applicant entitled to high-range spousal support, declined to impute additional income to her, and determined the "normal retirement date" for pension valuation purposes to be age 60 for Group 1 members of the Public Service Superannuation Act.

The court also addressed equalization payments, pre-judgment interest, and post-separation adjustments.

The applicant sought interim interim retroactive and ongoing spousal support, and an advance on her equalization payment for legal fees.

The respondent sought to sever the divorce from corollary relief.

The court imputed the respondent's income at $250,000 and attributed no income to the applicant, ordering $9,500 per month in spousal support retroactively from January 1, 2018, with credit for amounts already paid.

The request for an advance payment of costs was denied due to insufficient evidence of necessity and the applicant's financial resources.

The court granted the severance of the divorce, finding no legal disadvantage to the applicant.

A motion within a Children's Law Reform Act application concerning the permissible response of a domestic court to a possible misinterpretation of the Hague Convention by a foreign court.

The applicant sought orders affirming Ontario's jurisdiction and habitual residence of the child, and ordering the child's return from Georgia.

The respondent did not participate.

The court appointed amicus curiae to assist.

The Georgian courts had found wrongful retention but refused return under Article 13(b) exception.

The court declined to make the requested declarations, finding it lacked jurisdiction to issue binding declarations and that it was inappropriate to opine on issues pending before the European Court of Human Rights.

The proceedings were stayed pending the outcome in the European Court.

The applicant father sought orders affirming Ontario's jurisdiction over custody and access matters for a child wrongfully retained in Georgia by the respondent mother, following dismissal of a Hague Convention application in Georgian courts.

The applicant sought these "chasing orders" to support his application to the European Court of Human Rights.

The court found arguable errors in the Georgian courts' application of the Hague Convention, particularly regarding the Article 13(b) exception, but declined to make the requested orders without further evidence, argument from both parties, and amicus assistance, citing principles of judicial comity and the limited evidentiary foundation before the Ontario court.

The appellant appealed a change order made by the motion judge on June 10, 2016, which modified access arrangements for a seven-year-old child.

The original access order was made following a two-day trial on February 28, 2014.

The motion judge initially granted enhanced overnight access to the father on Monday and Thursday in alternate weeks to address the child's concerns about evening change-overs, but subsequently revised the order to Thursday overnights only in alternate weeks after the mother objected on child support grounds.

The appellant argued the motion judge erred in principle by considering child support implications rather than the best interests of the child.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's revised endorsement, which was intended to address the presenting issue of evening change-overs while maintaining the overall joint custody arrangement established at trial.

Following a successful motion for partition and sale of the matrimonial home, the applicant sought costs on a full indemnity basis.

The respondent, who was self-represented, opposed and sought her own costs.

The court found the applicant was the successful party and entitled to costs under Rule 24(1) of the Family Law Rules.

The court declined to award full indemnity costs, finding the respondent's conduct was not unreasonable and the applicant's offer to settle contained additional terms not granted in the order.

Costs were fixed on a partial indemnity basis at $5,000.

The applicant father brought a motion seeking an order restraining the respondent mother from removing the child from Ontario and disputing the respondent’s claim that Hawaii was the proper jurisdiction for custody and access proceedings.

Concurrent proceedings had been commenced in Hawaii.

Applying ss. 22 and 23 of the Children’s Law Reform Act, the court found that the child was habitually resident in Ontario despite attending school in Hawaii for several years.

Alternatively, the court held that returning the child to Hawaii posed a risk of serious harm given the child’s escalating behaviour and attempts to remain with the father.

The court therefore exercised jurisdiction in Ontario.

The applicant sought temporary spousal support following separation from the respondent after a four-year marriage.

The applicant, who lacks legal immigration status in Canada, sought $2,125 per month and imputation of $103,000 income to the respondent.

The respondent disputed financial dependency and claimed the applicant had undisclosed cash income.

The court found the applicant established a prima facie case for entitlement on both non-compensatory (need) and contractual (sponsorship undertaking) bases.

The court imputed income of $56,000 annually to the respondent based on unreasonable business expense deductions.

Departing from Spousal Support Advisory Guidelines due to basic needs exception and immigration sponsorship circumstances, the court awarded $1,000 per month in temporary spousal support commencing April 1, 2015, with arrears of $4,000.

The respondent father brought a motion to vary child support and reduce arrears accumulated under a final order requiring him to pay $375 per month.

The applicant mother opposed the motion.

The court found that while the father experienced a material change in circumstances by May 2009 (unemployment following layoffs), he was intentionally underemployed from May 2009 through May 2014.

The court imputed an annual income of $41,600 to the father based on his earning capacity as a certified drywall finisher, maintaining his support obligation at $375 per month for the retroactive period.

The court reduced arrears by $5,000 and ordered the father to repay remaining arrears at $500 per month, increasing to $675 per month following the child's adoption by the mother's new partner.