Elliot Seth Birnboim

The Court of Appeal for Ontario dismissed the appeal of Albert Edward Green from the order of Justice John Krawchenko regarding the division of property and spousal support following the breakdown of his marriage to Kristine Jill Hill.

The court upheld the trial judge’s findings on asset valuation, the application of the Family Law Act’s equalization mechanisms, and the denial of spousal support, finding no error in the trial judge’s approach or conclusions.

Costs of $35,000 were awarded to the respondent.

The Applicant sought summary judgment to enforce child support provisions of a separation agreement, while the Respondent sought to stay the summary judgment and remit the matter to arbitration, and to appoint a specific arbitrator.

The court confirmed its jurisdiction to hear the matter, dismissed the Respondent's motion to adjourn the summary judgment, and granted the Respondent's request to stay the summary judgment application, remitting the matter to arbitration.

The court dismissed the Respondent's motion to appoint an uncertified arbitrator (William C. McDowell) and instead granted the Applicant's alternate request to appoint a certified family law arbitrator (Cheryl Goldhart), emphasizing the legal requirement for arbitrators to be properly credentialed for awards to be enforceable.

The appellant father appealed a child support order, arguing the trial judge erred in imputing income based on a housing benefit and in making the order retroactive to the child's birth.

The Court of Appeal found no error in the trial judge's decision regarding imputed income, which was based on an adverse inference due to the father's non-compliance with disclosure orders and the value of free luxury accommodation received from his brother for engineering services.

The court also upheld the retroactive child support order, noting the father's blameworthy conduct in failing to provide proper financial disclosure.

The appeal was dismissed.

The case involved two motions concerning financial disclosure in a family law proceeding.

The respondent wife (B.M.) sought an order compelling the applicant husband (P.M.) to provide answers to undertakings, advisements, and refusals from his examination.

The applicant husband (P.M.) sought unredacted credit card statements from the respondent wife (B.M.).

The court granted B.M.'s motion in part, ordering P.M. to provide various financial disclosures, including paystubs, lawyer's file on share sale, credit card statements, pension plan details, updated financial statement, T1 returns, CIBC customer profile, and holding company financial statements.

The court dismissed P.M.'s motion for unredacted statements, allowing B.M. to redact location information due to serious domestic violence allegations and P.M.'s criminal history, while clarifying that only location data could be redacted.

The appellant, Rosetta Commisso, appealed a partial summary judgment dismissing her claims against her former mother-in-law, Evangelia Karatzoglou.

Commisso alleged that Evangelia held two properties in trust for her former spouse, Philip Karatzoglou, which should be included in his net family property for equalization purposes.

The Court of Appeal dismissed the appeal, affirming the motion judge's findings that there was no evidence of beneficial ownership by Philip in either property (Rainbow Valley or Bullock Drive) and that Commisso lacked standing to advance a trust claim on behalf of her former spouse for equalization purposes.

The court also found summary judgment appropriate in this family law context.

This is a costs endorsement following a decision where Mohammad Hamed Yousufzay was successful in his application and Mohammad Ali Eksir's application was dismissed.

Yousufzay sought full indemnity costs, while Eksir argued for no costs or partial indemnity.

The court found Yousufzay entitled to costs and awarded them on a substantial indemnity basis due to Eksir's unsubstantiated allegations of dishonesty and adverse credibility findings against him.

The court declined full indemnity costs, finding the case did not feature grave misconduct, and awarded $170,000.00 in all-inclusive substantial indemnity costs to Yousufzay.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The appellant, Assignment Credit Corp., was ordered to pay costs to several respondents (MCAP Financial Corporation, Dorr Capital Corporation, and Cherniak Law Professional Corporation).

The court rejected the appellant's argument that prior costs agreements should stand, as they were made before the appellant's non-disclosure of a material fact (that the Mesbur Judgment was obtained on consent) was revealed.

This non-disclosure, which impacted the second issue of the appeal, justified an elevated costs award on a solicitor-client basis for the affected respondents.

The 167 respondents were denied costs due to their own failure to disclose the consent judgment and their underlying financial obligations.

This case involved cross-applications between two shareholders/directors of a closely held corporation, United Investment.

Mohammad Ali Eksir sought a declaration of oppression under section 248 of the OBCA and an order to wind up the corporation, alleging self-dealing and financial misconduct by Mohammad Hamed Yousufzay.

Yousufzay sought an order for a shareholder meeting and production of financial records.

The court dismissed Eksir's oppression application, finding he failed to prove his reasonable expectations were violated, as he was aware of and implicitly approved the impugned transactions (shareholder loans, donations, home renovation expenses, snow clearing).

The court also dismissed the request for winding up, stating it was not a just and equitable remedy given the lack of serious harm and the availability of less drastic remedies.

Yousufzay's application for a shareholder meeting with varied quorum requirements under section 106 of the OBCA was granted to allow for the appointment of directors and address corporate governance issues.

This appeal concerned the priority of various creditors in a garnishment hearing involving payments owed by the City of St. Catharines and Region of Niagara to 1671379 Ontario Inc. under a Brownfield Tax Increment Based Incentive Grant Program Agreement (BTIG).

The primary dispute was between MCAP Financial Corporation, holding a perfected General Security Agreement (GSA), and Assignment Credit Corp. (ACC), asserting priority based on an assigned consent judgment (Mesbur Judgment).

The Court of Appeal affirmed the motion judge's finding that MCAP's perfected GSA had priority for its shortfall judgment over ACC's claim, finding no inconsistency in MCAP's position.

However, the court remitted the issue of priorities among ACC and other unsecured judgment creditors to the motion judge, as it was revealed post-hearing that the Mesbur Judgment was a consent judgment, a fact not disclosed to the motion judge or other creditors, raising new legal arguments regarding the Personal Property Security Act and the Assignments and Preferences Act.

This trial decision addressed child support, income imputation, section 7 expenses, and costs.

The court found the applicant's financial disclosure deficient and imputed income to him based on significant non-taxable housing benefits received from his family's real estate business.

Retroactive child support was ordered from the child's birth.

The court also determined which section 7 expenses were extraordinary and how they should be shared between the parties.

Costs for the parenting order, which was settled prior to trial, were not awarded to either party.

This is a costs decision following a successful summary judgment motion by Evangelia Karatzoglou ("Lisa") against Rosetta Commisso ("Rosa").

Lisa sought over $40,000 in costs, while Philip Karatzoglou ("Phil"), the applicant in the main action, sought over $18,000 in costs related to Rosa's claims against Lisa.

Rosa, who is impecunious, argued for no costs and that the amounts sought were excessive.

The court applied the Family Law Rules regarding costs, including the presumption of costs for the successful party and the impact of Rule 18 offers to settle.

The court balanced the factors, including the parties' conduct, offers to settle, and Rosa's financial predicament.

This is an appeal from an order granting the respondent leave to amend his Answer seven years after filing, to advance constructive and resulting trust claims in three properties purchased during the marriage and held in the appellant’s name, but sold before the motion for leave to amend.

The appellant argued prejudice due to timing, that claims were statute-barred, and lack of jurisdiction over foreign land.

The Court of Appeal dismissed the appeal, upholding the motion judge's decision that leave to amend was proper, the 10-year limitation period under the Real Property Limitations Act applied to the trust claims even after property sale, and the in rem jurisdiction issue was not relevant to the leave to amend motion.

The appellant, 2088556 Ontario Inc., appealed a trial judgment that ordered specific performance and an abatement in favour of the respondent, M & M Homes Inc., regarding an Agreement of Purchase and Sale for commercial land.

The appellant had failed to provide required services by a specified deadline, leading to the respondent suing for specific performance.

The Court of Appeal dismissed the appeal, upholding the trial judge's decision on specific performance, the abatement, the discretionary dismissal of the appellant's motion to amend pleadings, and rejecting claims of bias and the appeal of full indemnity costs.

The Applicant mother sought a temporary parenting order to resume a fixed parenting schedule, including overnight time, after two impaired driving incidents with children in the car.

The Respondent father had largely withheld the children due to safety concerns related to her alcohol abuse.

The court considered the children's best interests, the status quo, and the mother's efforts towards sobriety.

The court granted a modified parenting schedule with overnight access but imposed strict conditions, including supervision by the maternal grandfather for two months and mandatory use of the Soberlink Alcohol Monitoring System.

Various creditors of 1671379 Ontario Inc. and Manuel Elkind brought motions to determine priority status for garnishment payments owed by the City of St. Catharines and Region of Niagara under a Brownfield Tax Increment Based Incentive Grant Program Agreement (BTIG).

The primary dispute was between MCAP Financial Corporation, which held a registered and perfected security interest under the Personal Property Security Act (PPSA), and Assignment Credit Corp. (ACC), which claimed priority based on an assignment of a prior judgment.

The court found that MCAP's security interest, including the proceeds of the BTIG, maintained its priority status despite being reduced to a shortfall judgment.

The court dismissed ACC's claim for priority, finding that its assigned interest was subject to MCAP's prior perfected security and that ACC's claim should be limited to $400,000 as per a "Side Deal" in a previous endorsement.

The applicant sought to add two non-parties, Francis Montour and Greg Hill, to a family law proceeding and compel their questioning, asserting their relevance to a trust claim over "on reserve" properties and a tobacco farming business.

The respondent and proposed added parties opposed.

The court, applying Family Law Rules 7(5) and 20(5), found that the dispute between the primary parties could be resolved without adding the non-parties and that the motion for questioning was premature as the applicant had not exhausted other disclosure methods.

The applicant's motion was dismissed.

The appellant, 2460907 Ontario Inc., appealed an order striking its claim for pure economic loss against the respondent, 1521476 Ontario Inc. The claim arose from the respondent's re-entry of premises leased to a third party, 2456787 Ontario Inc., where the appellant intended to operate a restaurant.

The appellant claimed a possessory or proprietary interest in the premises.

The Court of Appeal upheld the motion judge's finding that the appellant lacked such an interest because the respondent had not consented to an assignment of the lease.

Consequently, no duty of care could arise to support a claim for pure economic loss.

The court distinguished the case from relational economic loss precedents due to the absence of any direct relationship between the appellant and respondent.

The appeal was dismissed with costs.

The appellant sought to overturn a trial judge's determinations regarding property and spousal support issues following a 21-day trial.

The Court of Appeal affirmed the trial judge's findings of fact and credibility assessments, emphasizing the high standard of deference owed to such findings in family law cases.

The appellant's arguments were largely rejected as an attempt to retry the case.

While a clerical error in the equalization payment was corrected in the appellant's favour, the appeal was otherwise dismissed, and costs were awarded to the respondent.

The plaintiff, MDG Newmarket Inc., brought a motion for summary judgment to enforce minutes of settlement against the defendant, Pierre Pascal, related to a rental contract for HVAC equipment.

Mr. Pascal counterclaimed, alleging misrepresentation, unjust enrichment, and statutory breaches, including under the Consumer Protection Act, 2002.

The court noted an ongoing class action against MDG involving similar contracts.

The court temporarily stayed MDG's action and referred the matter to the Regional Senior Judge in the Southwest Region to determine if it should be transferred or considered part of the class action, citing concerns about inconsistent findings and judicial efficiency.

Steve (Uziel) Igel sought leave to intervene as an added party in an action (the "Andrews Action") commenced by Jeffrey Feldberg against David Andrews and his companies.

The Andrews Action's allegations against Andrews are based on alleged misconduct attributed to Igel, which are also central to a separate, ongoing "Igel Action" between Igel and Feldberg.

Igel sought to intervene under Rule 13.01, arguing common questions of law/fact, reputational interest, and potential adverse effects from a judgment, particularly a pending Rule 21 motion to strike the Andrews Action as an abuse of process.

The court found Igel satisfied the threshold requirements for intervention.

The court granted Igel leave to intervene in the Rule 21 motion, finding he could make a useful contribution, but dismissed his request to be added as a full party to the entire Andrews Action as premature, subject to revisiting after the Rule 21 motion.

Feldberg also brought a successful motion to strike certain paragraphs and exhibits from an affidavit based on settlement privilege.

Costs were awarded.