Elliot Seth Birnboim

The Applicant brought a motion for interim exclusive possession of the matrimonial home, and the Respondent brought a motion for an order compelling global mediation.

The court granted the Applicant's motion, finding that it was in the best interests of the children to remain in the only home they had known without disruption.

The court dismissed the Respondent's motion for global mediation, finding no agreement between the parties to globally mediate the matter.

The respondent husband brought a motion for summary judgment to dismiss the applicant wife's claims to set aside their 2009 and 2012 separation agreements, arguing there was no genuine issue for trial, the claims were an abuse of process, and the equalization claim was statute-barred.

The court dismissed the summary judgment motion, finding genuine issues for trial regarding unconscionability, duress, and inadequate financial disclosure.

The court also denied the husband's requests to bifurcate the trial and for security for costs, and ordered him to answer various undertakings and refusals from questioning.

The applicant brought a motion for temporary child and spousal support and interim disbursements.

The core issue was determining the respondent's income, as he claimed an income of $200,000 to $260,000 while the applicant argued it was over $1.4 million based on pre-tax corporate income and benefits.

The court found the respondent's Line 150 income was not the fairest determination and fixed his income at $707,500 for temporary support purposes, applying sections 16, 17, and 18 of the Federal Child Support Guidelines.

The court also ordered the respondent to provide a fair market valuation of his business interests, finding them relevant to spousal support despite a marriage contract.

The appellant, an accounting firm's client, appealed a judgment in favour of Collins Barrow Toronto LLP for unpaid audit services invoices.

The appellant argued the application should have been converted to an action based on allegations of negligence in service provision and that certain invoices were barred by the two-year limitation period under the Limitations Act, 2002.

The Court of Appeal upheld the application judge's decision, finding no error in determining the matter under the Rules of Civil Procedure based on contract interpretation, rejecting the conversion argument due to insufficient evidence of negligence and damages, and finding the limitation period analysis sound based on the express terms of the engagement letters.

Following the dismissal of the plaintiff's refusals motion and the granting of the defendants' motion to discharge certificates of pending litigation, the court determined the costs of the proceedings.

The court awarded the plaintiff $4,095 for a successful adjournment request, and awarded the defendants $2,000 for the refusals motion.

For the main motion to discharge the CPLs, the court awarded the defendants substantial indemnity costs of $75,000 due to the plaintiff's failure to make full and fair disclosure on its initial ex parte motion and its failure to accept a reasonable Rule 49 offer to settle.

The net costs payable by the plaintiff to the defendants were fixed at $72,905.

The defendant abandoned its motion for an interlocutory injunction after failing to obtain interim relief.

The plaintiff sought substantial indemnity costs, arguing it had made an offer to settle that it beat due to the abandonment.

The court held that under Rule 49, a responding party is not automatically entitled to substantial indemnity costs upon beating an offer, and such an award requires reprehensible conduct, which was absent here.

The court awarded the plaintiff partial indemnity costs fixed at $17,500.

Appeal from trial judge's decisions regarding spousal and child support, and division of family home value in a common-law relationship of over 16 years.

The trial judge found a joint family venture and awarded the respondent $595,530 as her share of the family home, imputed $150,000 annual income to the appellant, and ordered costs of $280,000.

The appellate court allowed the appeal in part, reducing the respondent's share to $527,000 by deducting the outstanding mortgage balance, but upheld the imputation of income and dismissed the cross-appeal and motion for leave to appeal costs.

The court heard two motions: the defendants' motion to discharge a Certificate of Pending Litigation (CPL) and the plaintiff's cross-motion to compel answers on cross-examination.

The plaintiff's motion was dismissed as overly broad.

The defendants' motion to discharge the CPL was granted.

The court found that the plaintiff failed to make full and frank disclosure on its ex parte CPL application and that there was no triable issue regarding the plaintiff's claim to an interest in the land.

The Letter of Intent and subsequent amending agreements were deemed unenforceable as they lacked essential terms, constituting "agreements to agree."

The court determined ongoing and retroactive child and spousal support following an earlier judgment on property and income issues.

Key issues included the appropriate income for retroactive calculations, the duration and quantum of ongoing spousal support, and whether retroactive spousal support should be adjusted for tax consequences due to non-deductibility.

The court fixed ongoing spousal support at the lower end of the mid-range, ordered it indefinitely subject to review, and applied a 30% reduction to retroactive spousal support for non-deductibility.

The applicant sought leave to appeal a $30,000 costs order made against him following a family law motion regarding child custody.

The applicant argued there was conflicting case law on awarding costs in child-related issues and that the motions judge erred by not considering the respondent's offer to settle.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions on principle and no reason to doubt the correctness of the order, as the respondent was clearly successful on the main issue of custody.

The applicant sought a declaration of a half-interest in a property registered solely in the respondent's name, based on the doctrine of joint family venture and unjust enrichment.

The parties cohabited for 16 years and had three children together.

The court found that the relationship constituted a joint family venture and that the respondent retained a disproportionate share of the wealth accumulated during the relationship.

The court ordered a monetary award of $595,530, representing half the net value of the property at the date of trial.

Additionally, the court imputed an annual income of $150,000 to the respondent for support purposes, finding him intentionally under-employed.

The applicant, an auditing firm, sought judgment against the respondents for unpaid invoices via an application.

The respondents disputed the fees, alleging a promised discount and challenging the contractual interest rate.

The court considered whether the matter could be resolved by application or required conversion to an action.

Finding material facts in dispute regarding the alleged discount and the need for pleadings to clarify legal positions, the court concluded that the application was not a "clearest of cases" suitable for resolution on a paper record.

The application was therefore converted into an action, and a trial was directed, with a timetable for the exchange of pleadings.

The applicant, Tom, sought an order for the parties' 14-year-old child, Scarlet, to live with him in the United Kingdom and attend school there.

The respondent, Marie, opposed this motion and brought a cross-motion for interim child and spousal support, and s. 7 expenses.

The court dismissed Tom's motion, finding it was not in Scarlet's best interests to be uprooted from her established home and school in Toronto.

The court granted Marie's request for interim child and spousal support, and s. 7 expenses, based on the parties' 2016 incomes.

Marie was granted interim custody with final decision-making authority.

The father sought leave to appeal a decision dismissing his motion to change a temporary, without prejudice access schedule and granting temporary sole custody to the mother.

The motion judge had required the father to prove a material change in circumstances to vary the access order.

The court granted leave to appeal on the access issue, finding good reason to doubt the correctness of applying the material change test to a without prejudice temporary order, which raised a matter of public importance.

Leave to appeal the custody order was denied as it was fact-specific.

The father sought leave to appeal a decision that dismissed his motion to change an access schedule and granted temporary sole custody to the mother.

The original decision required a "material change in circumstances" to vary a "temporary, without prejudice" consent order.

The court granted leave to appeal on the access issue, finding good reason to doubt the correctness of applying the material change test to such orders, and that this issue was of public importance due to conflicting judicial opinions.

Leave to appeal on the custody issue was denied as it was fact-specific and did not raise questions of public importance.

No costs were awarded due to divided success.

The appellant wife appealed an order granting her an equalization payment of $60,000 following a short marriage with less than five years of cohabitation.

She argued the motion judge erred by not adopting a mathematical formula for unequal division and by misstating her alternative position.

The Court of Appeal dismissed the appeal, holding that the motion judge was not required to use a mathematical formula and properly applied s. 5(6) of the Family Law Act to determine that equal division would be unconscionable based on the parties' respective contributions.

The applicant wife brought a motion to strike the respondent husband's pleadings for failure to make financial disclosure, which was dismissed as the disclosure orders had been largely fulfilled by the hearing date.

Both parties subsequently sought costs of the motion on a full indemnity basis.

The court noted the wife's argument that the husband's repeated inadequate disclosure necessitated the motion, while the husband argued he was successful on the motion.

Given the lengthy history of the case and the triable issues regarding the adequacy of disclosure, the court reserved the costs of the motion to the trial judge to ensure fairness.

The applicant was unsuccessful on a motion for leave to appeal.

The respondent sought costs of the motion on a substantial or partial indemnity basis, while the applicant argued no costs should be ordered.

The court found that the issues did not transcend the interest of the parties and a costs order was warranted under the Courts of Justice Act and applicable rules.

The court awarded costs to the respondent fixed at $2,500 on a partial indemnity basis.

The applicant was unsuccessful on her motion for exclusive possession of the matrimonial home.

The respondent sought costs of $13,702.77 as the successful party.

The court considered the factors under Rule 24(11) of the Family Law Rules, including the importance and complexity of the issues, and the applicant's unreasonable behaviour.

The court awarded the respondent costs fixed at $8,000 on a partial indemnity basis, payable by a specified date or from the applicant's share of the proceeds of the sale of a jointly owned property.

The applicant spouse brought a motion for exclusive possession of the matrimonial home under s. 24(3) of the Family Law Act, alleging that the respondent’s aggressive conduct and her declining health made continued cohabitation intolerable.

The respondent denied the allegations and argued the motion was strategic within the broader family law litigation.

The court reviewed the statutory factors under s. 24(3), including financial circumstances, written agreements, alternative accommodation, and alleged violence.

The evidence consisted of sharply conflicting affidavits, and the court found insufficient reliable evidence to establish psychological violence or other statutory grounds warranting exclusive possession.

The applicant therefore failed to meet the burden of proof on a balance of probabilities.