Edwin A. Flak

The plaintiff and defendant are siblings disputing the estate of their late mother, who died leaving over $21 million in assets.

The mother had historically treated her children equally in her estate planning.

In May 2013, she executed a new will leaving 75% of her estate to the defendant and 25% to the plaintiff.

Subsequently, between August 2013 and September 2014, the mother executed numerous documents that effectively transferred all her wealth to the defendant, primarily through a joint investment account with a right of survivorship, and disinherited the plaintiff entirely.

The plaintiff challenged the validity of the May 2013 will and the subsequent documents, alleging lack of testamentary capacity and undue influence.

The court found that the mother had testamentary capacity throughout.

However, the court concluded that the post-August 2013 documents and inter vivos gifts were procured through the defendant's undue influence and were therefore invalid.

The court upheld the May 2013 will as valid and ordered that the assets transferred to the defendant be held in a resulting trust for the estate, to be distributed 75% to the defendant and 25% to the plaintiff.

The parties separated after a 25-year traditional marriage.

The respondent mother sought interim spousal and child support for their child with cerebral palsy.

The applicant father, a self-employed business owner, failed to provide complete financial disclosure.

Relying on the respondent's expert business valuator, the court imputed an income of $488,000 to the father, grossing up undeclared management fees and discretionary expenses.

The court imputed an income of $40,000 to the mother based on her earning capacity.

The father was ordered to pay $3,764 monthly in child support, $11,374 monthly in spousal support, and 92% of section 7 expenses.

The Applicant sought to adjourn a trial scheduled for October 2016 to March 2017, primarily to pursue further disclosure and potentially amend her claims to set aside a 1999 consent divorce judgment.

The court dismissed the motion, finding that the request amounted to a "fishing expedition" to fundamentally change the nature of the proceedings, was made too late, and was not adequately supported by medical evidence.

The court emphasized balancing fairness to both parties and the Respondent's right to a timely resolution after four years of litigation on the Motion to Change.

The trial was confirmed for October 2016 with strict time limits for each party.

The appellant mother appealed a trial judgment granting the respondent father overnight access to their six-year-old child.

The trial judge had adopted the parenting plan proposed by a court-appointed assessor, despite the mother's allegations of domestic violence and her reliance on critique evidence from another expert.

The Court of Appeal dismissed the appeal, finding that the trial judge properly considered the best interests of the child under the Children's Law Reform Act, appropriately weighed the expert evidence, and did not err by declining to make a formal 'custody' order or by ordering the parties to engage a mediator/arbitrator based on prior consent.

The parties engaged in mediation-arbitration for family law matters.

The arbitrator awarded retroactive child support after finding the respondent misrepresented his income.

The appeal judge overturned the award, finding the arbitrator erred by not conducting a D.B.S. analysis.

The Court of Appeal allowed the appeal, holding the appeal judge applied the wrong test for sufficiency of reasons and erred by disallowing the award without performing the analysis or remitting it.

The matter was referred back to the arbitrator to determine if D.B.S. applies.

The court also refused to hear the respondent's submissions due to his deliberate misconduct in failing to pay costs, child support, and disclose tax returns.

Following a partially successful appeal from a family arbitration award concerning equalization, child support, and spousal support, the court addressed costs of the leave motion and appeal.

The appellant succeeded in setting aside the retroactive child support award and in having the lump sum spousal support award reconsidered, while the respondent preserved most other components of the arbitration award.

Applying Rule 24 of the Family Law Rules and s.131 of the Courts of Justice Act, the court held that success on the appeal was divided.

Given the mixed and substantial success of both parties, it was inappropriate to treat either side as the substantially successful party.

The court exercised its discretion to make no order as to costs.

The applicant appealed a family law arbitration award that ordered him to pay retroactive and ongoing spousal support, child support, and an equalization payment.

The applicant argued the arbitrator made palpable and overriding errors in imputing income, drawing adverse inferences regarding his assets, and failing to apply the Spousal Support Advisory Guidelines.

The Superior Court of Justice dismissed the appeal, finding that the arbitrator's reasons were adequate, the findings of fact were supported by the evidence, and there was no error in principle or reasonable apprehension of bias.

The applicant wife sought an adjournment of a family law trial scheduled to commence in October 2012.

The litigation had been ongoing since 2005, with the trial previously adjourned.

The applicant argued an adjournment was necessary due to a recent document disclosure request, her new employment, and the need for time to prepare after her counsel withdrew following an unsuccessful motion for interim costs.

The court dismissed the motion, finding the disclosure request tactical, the employment issue self-created, and the withdrawal of counsel foreseeable.

The court held that granting an adjournment would cause significant non-compensable prejudice to the respondent and undermine the administration of justice.

The appellant appealed a supplementary family arbitration award concerning child support income calculations and spousal support.

She argued the arbitrator erred by using a formula to determine income rather than strictly applying the Federal Child Support Guidelines, by declining to apply the Spousal Support Advisory Guidelines, and by providing insufficient reasons for the spousal support amount and commencement date.

The court held the arbitrator did not err in maintaining the previously ordered income-calculation formula, noting the appellant had originally requested that approach and did not appeal the earlier award.

The court also found no error in declining to apply the Spousal Support Advisory Guidelines given the parties’ agreement, the high income involved, and the atypical circumstances.

Applying the standard of review for arbitral awards, the court concluded there was no palpable and overriding error and that the reasons were adequate when read together with the earlier award.

In a family law proceeding involving divorce, property division, and spousal support, the parties brought a consent “basket” motion seeking an order permitting questioning and the bringing of motions following a case conference.

The court considered the interaction between Rules 13, 14, and 20 of the Family Law Rules.

It held that Rule 13(13) independently authorizes questioning on financial statements once the required request for additional information has been made, without requiring a separate court order under Rule 20(5).

The court further clarified that Rule 14(4) only prohibits motions before completion of a case conference; once the conference is completed, no additional order is required to bring motions.

The requested consent order was refused as unnecessary.

The appellant corporation, KPM, appealed an order of the case management judge denying it leave to bring a motion to remove itself as a party to a long-standing family dispute.

KPM argued the order was made summarily without an opportunity to be heard.

The Divisional Court dismissed the appeal, finding that the case management judge was entirely familiar with the reasons for adding KPM as a party to facilitate property valuation, and was entitled to deal with the request expediently.

The reasons for KPM's inclusion as a party remained extant.

The appellant brought a motion to adjourn the appeal in order to obtain a transcript of a trial management conference.

The Divisional Court denied the motion, noting that a court reporter is only present at such conferences when a litigant is unrepresented, and a transcript cannot be ordered without the conference judge's permission.

The court held that granting an adjournment based on the mere hope of obtaining permission made no sense.

Furthermore, the relevant rule only contemplates transcripts of oral evidence, which was not given at the conference.