Esther L. Lenkinski

The applicant sought to vary an interim consent order that allowed the respondent to offset a $1.7 million loan against his ongoing child support obligations.

The Family Responsibility Office (FRO) refused to enforce the support orders because its system could not process the offset.

The court varied the order to delete the offset provision, holding that child support is the right of the child and cannot be bargained away or offset against debts between the parents, particularly regarding ongoing support.

The applicant wife and respondent husband, both Canadian and Iranian citizens, separated in Ontario.

The husband sought to recognize and enforce an Iranian divorce judgment, arguing it dealt with property and support.

The wife opposed this, arguing she did not attorn to Iranian jurisdiction and that there was no real and substantial connection to Iran for the divorce.

She also sought a declaration that the Mehr (marriage portion) enforcement did not fully determine property rights in Canada.

The court dismissed the husband's motion, finding no attornment or real and substantial connection to Iran for the divorce.

The wife's motion for declaratory relief regarding the Mehr was also dismissed, as the court found it was not appropriate for summary judgment and should be determined at trial.

The Respondent brought a motion seeking extensive financial disclosure and orders regarding life insurance policies from the Applicant.

The Applicant filed a cross-motion for disclosure and other relief.

The court characterized the parties' litigation as a "train wreck" due to serial motions and non-compliance with disclosure, deeming it an abuse of process.

The judge ordered the Applicant to comply with previous disclosure orders and specific requests from the Respondent's business valuator within 30 days.

All other scheduled motions were vacated, and the parties were directed to a case conference to manage the matter towards a trial.

The applicant sought an immediate sale of the matrimonial home and release of half the net proceeds.

The respondent initially opposed the sale but later agreed to it, disputing only the terms of staging/repairs and the release of proceeds, arguing for a smaller initial release and the remainder held in trust as security for his equalization and unjust enrichment claims.

The court ordered the immediate sale of the matrimonial home on the applicant's proposed terms, including following real estate agent advice on staging/repairs, with costs paid from proceeds.

The court also ordered 50% of the net proceeds to be released to the applicant and the balance held in trust, finding the respondent had not established a prima facie unjust enrichment claim or met the onus for a preservation order for the full amount.

The moving party brought a motion for leave to appeal an earlier order.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding party.

The parties brought cross-motions for a parenting plan regarding their 17-month-old child.

The mother sought to delay overnight parenting time until March 2022, citing the child's young age and breastfeeding needs.

The father sought immediate overnights to coincide with his upcoming paternity leave.

The court found that the 'tender years' doctrine no longer applies and that breastfeeding is not a bar to overnight access.

The court ordered a progressive parenting schedule that introduced overnights during the father's paternity leave to foster a strong bond, alongside a detailed holiday schedule.

The applicant was largely successful on a motion regarding child support and financial disclosure.

The respondent conceded the applicant's entitlement to costs, leaving only the quantum to be determined.

The court found that the respondent engaged in bad faith by persistently refusing to provide full and frank financial disclosure, thereby unnecessarily driving up litigation costs.

The applicant also beat her offer to settle.

Consequently, the court awarded the applicant costs on a full recovery basis in the amount of $70,000, characterized as child support for enforcement purposes.

The respondent's motion for the return of the children to Scotland under the Hague Convention was previously dismissed.

The applicant sought costs of $99,809.24 on a full indemnity basis.

The court found that both parties engaged in unreasonable behaviour: the respondent filed improper reply evidence and made unfounded reports to child protection services, while the applicant removed the children from Scotland without the respondent's consent under the guise of a sham access arrangement.

Finding no bad faith or applicable offers to settle, the court declined to award full indemnity costs and ordered the respondent to pay costs of $40,000.

The applicant mother brought a motion for temporary child and spousal support, seeking to impute an annual income of $1.5 million to the respondent father based on text messages and lifestyle.

The father argued his income was $146,655.50.

The court found the financial disclosure from both parties to be inadequate and applied 'rough justice' to determine income based on the parties' sworn living expenses.

The court imputed an income of $285,000 to the father and zero income to the mother, ordering temporary spousal support of $7,201 per month and child support of $2,271 per month.

The mother's request for an order requiring the father to obtain $4.1 million in life insurance was dismissed due to a lack of evidence.

The moving party father brought a motion under the Hague Convention for the return of his two children to Scotland, alleging the responding party mother wrongfully removed them to Ontario.

The court applied the hybrid approach to determine habitual residence, finding that the older child was habitually resident in Canada and the mother was the focal point of the infant child's life.

The court also considered the exceptions under Article 13 of the Hague Convention, finding that while the father exercised custody rights and did not consent to the removal, there was no grave risk of harm.

The motion for the return of the children was dismissed.

The applicant father brought a motion seeking the return of the parties' seven-year-old child to Los Angeles, California, under the Hague Convention, or, alternatively, interim parenting orders if the child remained in Ontario.

The court applied the "focal point of the child's life" test to determine habitual residence, finding that the child's habitual residence had shifted to Ontario due to the respondent mother's unilateral actions and disappearance, and the child's integration into Ontario life.

Consequently, the Hague Convention did not apply, and Ontario had jurisdiction.

The court also found that even if the Hague Convention applied, exceptions for grave risk of harm and acquiescence would prevent the child's return.

Interim parenting orders were granted, giving the applicant primary residence and major decision-making authority, with other issues adjourned to a case conference.

Costs were awarded to the applicant.

Following the dismissal of the respondent's motion to reinstate his struck pleadings, the court determined the costs payable to the successful applicant.

The court found the respondent acted in bad faith by failing to comply with financial disclosure orders, warranting full recovery costs under Rule 24(8) of the Family Law Rules.

However, the court reduced the quantum due to the applicant's counsel's unreasonable delay in responding to communications and excessive hours claimed.

The respondent was ordered to pay $15,000 in costs.

The applicant husband sought temporary sole custody and a s. 30 assessment, while the respondent wife sought summary judgment for permanent relocation to England with the children, or alternatively, an interim order to that effect, along with child and spousal support.

The court dismissed the husband's motions for temporary sole custody and a s. 30 assessment.

The wife's motion for summary judgment on permanent relocation was also dismissed, but she was granted interim sole custody and permission to return to England with the children, subject to conditions including a $10,000 security deposit and obtaining a mirror order in England.

The court also ordered a Voices of the Child report, with costs shared equally, and continued supervised access for the husband.

An expedited trial for custody, access, and mobility issues was set for January 2019.

Appeal from a motion judge's order determining child support obligations.

The appellant sought to reduce child support based on reported lower income, but the motion judge found the appellant had engaged in deliberate non-disclosure and evasion of financial disclosure obligations, hiding income through a corporation.

The motion judge attributed significantly higher income to the appellant and ordered child support payments over twelve months rather than the ten months specified in a prior consent order.

On appeal, the court found one palpable and overriding error regarding double-counting of repaid corporate loans but otherwise upheld the motion judge's decision.

The court reduced the attributed income and corresponding child support amounts but maintained the twelve-month payment structure.

The plaintiff brought a motion for summary judgment claiming $320,000 from her deceased ex-husband's estate.

The claim was based on a separation agreement that guaranteed her $1.5 million from the sale of a property, provided the deceased required her to accept an offer for less.

The plaintiff sold the property for $1.18 million without advising the deceased of the listing price or the offer before acceptance.

The court dismissed the action, finding that under the clear wording of the agreement, the deceased had the right to decide whether an offer under $1.5 million should be accepted.

The court also rejected the plaintiff's argument of promissory estoppel, finding the deceased's silence did not amount to a representation.

The parties appealed a trial decision regarding financial issues following their separation.

The Court of Appeal corrected the trial judge's error in imputing income to the respondent, finding she was not deliberately underemployed due to health challenges.

The court adjusted spousal support to the high end of the Spousal Support Advisory Guidelines range based on correct income figures.

The court also upheld the appellant's obligation to pay for extraordinary expenses (music lessons) despite the respondent's mother having paid for them, and maintained the trial judge's order regarding medical insurance.

The parties could not agree on the terms of orders flowing from previous endorsements regarding support arrears, requiring the court to issue a further endorsement.

The respondent sought full indemnity costs, arguing the applicant acted in bad faith by attempting to enforce unascertainable arrears through the Family Responsibility Office despite the court's clear prior rulings.

The court found that the applicant's conduct amounted to bad faith under Rule 24(8) of the Family Law Rules, as she sought to relitigate the issue of arrears without reasonable justification.

Consequently, the court ordered the applicant to pay the respondent's costs on a full indemnity basis in the amount of $5,214.95.

This endorsement addresses the costs of motions brought by both parties, which involved parenting and procedural issues.

The court found that neither party achieved clear success on the parenting issues, and success was divided on procedural matters.

The respondent sought partial or substantial indemnity costs, while the applicant sought substantial indemnity costs, alleging bad faith by the respondent.

The court declined to find bad faith, noting that both parties contributed to the procedural wrangling and conflict.

Despite the applicant making a timely offer to settle, the court concluded that neither party should be vindicated by a costs award.

Consequently, no costs were awarded to either party for the motions.

The payor parent brought two motions to change seeking a reduction in child support based on alleged decreases in income.

The court found significant disclosure failures, credibility issues, and inaccurate financial statements.

After examining corporate records and evidence concerning the payor’s closely held corporation, the court attributed full corporate income, shareholder loans, and personal expenses paid through the corporation as income under the Child Support Guidelines.

The court determined the payor’s income for support purposes was substantially higher than claimed and increased the monthly child support obligations retroactively and prospectively.

A request by the responding parent to vary holiday access was dismissed for lack of material change.

The applicant father brought a motion for temporary access to the parties’ four‑year‑old child pending completion of a s. 30 parenting assessment.

The respondent mother sought supervised access relying in part on a pediatrician’s letter suggesting the child may have experienced trauma during prior visits.

The court found the purported expert opinion unreliable because it was based largely on the mother’s subjective account and incomplete information without input from the father.

Finding no credible evidence of safety concerns and noting previous orders granting unsupervised access, the court ordered a structured temporary access schedule including weekday visits and gradually expanding overnight access, while directing that questioning on affidavits be completed.