Elliot Seth Birnboim

The applicant sought leave to appeal an interlocutory order that dismissed her motion for financial disclosure prior to a first case conference.

The respondent disputed the existence of a spousal relationship and argued he had no obligation to provide financial disclosure.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motion judge's decision that there was no urgency and that the disclosure issue should be addressed at the case conference.

The applicant brought a motion under Family Law Rule 11(3) seeking leave to amend her application to include a claim under s. 5(6) of the Family Law Act.

The proposed amendment alleged that following separation the respondent transferred substantial funds from a corporation owned directly or indirectly by the applicant to a corporation owned by the respondent.

The respondent opposed the amendment on the basis that the corporations involved should be added as parties to the proceeding.

The court held that amendments should be permitted unless the responding party would suffer non-compensable prejudice, and found that the s. 5(6) claim could be adjudicated without adding the corporations.

The motion to amend was therefore granted.

The applicant brought a motion for declarations concerning whether portions of prior family property orders were automatically stayed by the respondent's appeal.

The court held that the provision directing equal sharing of sale proceeds from jointly owned property was not a provision for payment of money within rule 63.01, and therefore was not stayed.

However, the deductions and prior costs order were provisions for payment of money and were stayed pending appeal.

The court directed partial release of the trust funds, subject to holdbacks, and awarded motion costs to the applicant.

On a Rule 21 motion, the moving defendant sought to strike a claim arising from an exclusive distribution agreement on the basis of privity of contract after an alleged corporate takeover of the original contracting party.

The responding party also sought leave to amend and to file evidence.

The court held that evidence was inadmissible on the motion, but allowed the proposed amendment and declined to strike the contract-based claims because it was not plain and obvious they had no reasonable prospect of success, including on a novel theory that obligations could flow through a merger, acquisition, or common directing mind.

The tortious interference claim was struck for failure to plead the necessary third-party element.

No costs were awarded given the mixed result.

The defendants brought motions seeking dismissal of the claim against an individual defendant and security for costs.

The plaintiff sought leave to amend the statement of claim to add allegations that the individual defendant improperly directed the corporate defendant not to pay a promissory note.

The court held the proposed amendments were insufficient to establish personal liability for a corporate officer because they did not plead conduct separate from the officer’s role as the directing mind of the corporation.

Leave to amend those portions of the pleading was refused, and the claim against the individual defendant was dismissed for failing to disclose a genuine issue requiring a trial.

The court also ordered the corporate plaintiff to post $25,000 as security for costs due to concerns about its ability to satisfy a potential costs award.

The court determined costs arising from competing family law motions involving a request to strike pleadings and a motion to amend an answer.

The respondent obtained an adjournment of the applicant’s motion and leave to amend the answer, while the applicant successfully limited the proposed amendments and resisted a request for questioning.

Applying Rule 24 of the Family Law Rules, the court found that success was divided and that both parties had behaved unreasonably in aspects of the litigation.

The applicant had commenced a motion prematurely and before an agreed hearing date, while the respondent delayed bringing a motion to amend despite earlier leave to do so.

In light of the divided success and unreasonable conduct on both sides, the court declined to award costs to either party.

The moving party sought to set aside default family law orders for spousal support, child support, and equalization that were issued after his pleadings were struck for repeated disclosure failures and non‑compliance with court orders.

He argued the orders were based on incorrect assumptions about his income and relied on a later forensic accounting report indicating significantly lower earnings.

The court applied the principles governing motions to set aside default judgments, including timeliness, explanation for default, arguable merits, prejudice, and the interests of justice.

The court found the moving party had failed to provide a satisfactory explanation for years of delay and persistent non‑compliance with disclosure and support orders.

Considering the prejudice to the responding party and the integrity of the administration of justice, the motion was dismissed.

Following a trial regarding variation of child and spousal support, both parties sought substantial costs awards.

Each argued they were the more successful party after the court ordered a modest reduction in support based on imputed income.

The court found neither party was clearly more successful and criticized both sides for conducting the litigation in a grossly disproportionate manner relative to the financial issues in dispute.

The court also considered the potential impact of a significant costs award on the custodial parent’s ability to support the child.

In the circumstances, the court concluded that fairness and proportionality required that each party bear their own costs.

A dispute arose between owners of adjacent apartment buildings concerning access to a shared outdoor swimming pool and a garbage disposal facility located on the defendants’ property.

The plaintiff asserted that it held easement rights permitting continued use of the facilities based on the original design and joint development of the properties in the late 1960s.

The defendants argued the plaintiff had only a revocable licence and counterclaimed for trespass arising from construction activities on their land.

The court held that the evidence established an implied easement arising from the common intention of the original developers when the lands were severed and developed as a single complex.

The plaintiff therefore retained enforceable easement rights over the defendants’ land for both facilities, and the defendants’ trespass claim failed because the impugned acts were committed by independent contractors without the plaintiff’s control.

The respondent in a family law proceeding brought a motion seeking security for costs by preventing the sale, transfer, or encumbrance of a property registered in the applicant’s name.

The motion relied primarily on the applicant’s failure to pay a prior $750 costs order and concerns that the property might be transferred to a third party.

The court held that while Rule 24(13) of the Family Law Rules permits security for costs where a costs order remains unpaid, the amount outstanding was minimal and insufficient to justify the order.

The motion was also brought at the conclusion of trial, undermining the policy considerations typically underlying security for costs.

The court further noted that the requested order could affect the interests of a non‑party who contributed to the mortgage and expenses of the property.

The motion was dismissed and previous orders restricting dealings with the property were vacated.

Following a family law motion concerning exclusive possession and sale of the matrimonial home, the court determined the appropriate costs award.

The moving party sought full‑indemnity costs of approximately $15,780 after achieving success on the principal issues of exclusive possession and dispensing with the opposing party’s consent to sale of the home, although the request to strike pleadings was not granted.

Applying Rule 24 of the Family Law Rules and Rule 57.01 of the Rules of Civil Procedure, the court considered success at the motion, party conduct, settlement offers, and the principle of reasonableness.

The court found the moving party was more successful overall and that the responding party’s conduct, including failure to comply with court orders and disclosure obligations, necessitated the motion.

A fair and reasonable all‑inclusive costs award of $10,000 was ordered.

The applicant mother brought an urgent motion regarding the schooling of the parties’ children, seeking an order that the twins attend a public school rather than a private Jewish day school preferred by the respondent father.

The court considered the best interests of the children under s. 16 of the Divorce Act and s. 24 of the Children’s Law Reform Act.

Relevant factors included the children’s existing familiarity with the public school, proximity to the primary residence, social connections in the neighbourhood, travel logistics, financial feasibility of private school, and potential impact on the mother’s employment at the private school.

The court found no evidence that the children’s Jewish education would suffer if they attended the public school supplemented by extracurricular religious instruction.

On balance, the court concluded that attending the public school for Grade 1 better served the twins’ best interests.

The applicant wife brought a motion for exclusive possession of the matrimonial home and to stay the respondent husband's pleadings due to his failure to pay prior costs awards and his share of a custody assessment retainer.

The court found that the parties' continued cohabitation was a 'warzone' contrary to the child's best interests and that the husband had the ability to find alternative accommodation.

The court ordered the husband to vacate the home forthwith, granted the wife exclusive possession, and stayed the husband's pleadings until he cured his financial defaults.

The appellant, a former executive and minority shareholder, sued the respondents in Ontario for wrongful dismissal, unpaid wages, and oppression.

The motions judge denied the appellant's motion for partial summary judgment and granted the respondents' motion to stay the action based on an exclusive forum selection clause in a Shareholders' Agreement favouring England.

On appeal, the Court of Appeal upheld the denial of summary judgment but set aside the stay.

The Court found that the motions judge erred by ignoring a non-exclusive Ontario forum selection clause in the appellant's Service Agreement and by failing to consider that the respondents had attorned to Ontario's jurisdiction by defending the action on the merits and counterclaiming before invoking the English forum selection clause.

Following the dismissal of the wife's application for leave to appeal a summary judgment decision regarding the partition and sale of a jointly owned family cottage, the court determined the quantum of costs payable to the successful husband.

The court applied the principles of proportionality and reasonableness, noting that the husband's claimed costs of over $16,000 for a leave to appeal motion were excessive.

Costs were fixed on a partial indemnity scale at $8,487.09.

The applicant wife sought leave to appeal a costs order of $32,107.82 made against her following an unsuccessful motion for partition and sale of a family cottage.

The court reviewed the test for granting leave to appeal an interlocutory order under Rule 62.02(4) of the Rules of Civil Procedure.

The court found that the motions judge had correctly applied the proper principles in awarding costs and that the wife failed to demonstrate conflicting decisions or good reason to doubt the correctness of the order.

The motion for leave to appeal was dismissed.

The applicant wife sought leave to appeal an interlocutory order dismissing her motion for summary judgment for the partition and sale of a jointly owned cottage.

The motion judge had found a genuine issue for trial regarding whether the application was vexatious, given the wife's admitted vandalism of the property.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's order.

The appellants appealed the judgment of the Superior Court of Justice.

The Court of Appeal dismissed the appeal, finding that the trial judge's findings of fact were open to him on the evidence and were fatal to the issues raised.

The court also held that the issue of interest was a question of contract and was properly pleaded.

The appeal was dismissed with costs fixed at $5,000.

The franchisor, Print Three, appealed a trial judgment finding it liable for fundamental breach of a franchise agreement and breach of a duty of good faith.

The franchisee, Shelanu, had entered into a subsequent oral agreement regarding royalty rebates, which Print Three later refused to honour.

The Court of Appeal upheld the enforceability of the oral agreement despite an entire agreement clause, finding the parties had amended their written agreement by conduct.

The Court also affirmed that a duty of good faith exists in franchisor-franchisee relationships.

However, the Court found the trial judge erred in concluding that Print Three's establishment of a new franchise concept breached this duty, and further erred in finding a fundamental breach that excused Shelanu from future performance.

The appeal and cross-appeal were allowed, and damages on the franchisor's counterclaim were reassessed.

The respondent purchased a vehicle from a client to settle a debt, without obtaining proper documentation or inquiring about the vehicle's history.

The vehicle was later stolen, and the police discovered it had been previously stolen before the respondent acquired it.

The respondent filed an insurance claim, which the insurer denied on the basis that he lacked an insurable interest.

The trial judge and Divisional Court applied the factual expectation test and ruled in favour of the respondent.

The Court of Appeal allowed the insurer's appeal, holding that the factual expectation test does not apply to stolen property and that the respondent's willful blindness regarding the vehicle's origins negated any claim of good faith, thereby depriving him of an insurable interest.