Herschel I. Fogelman

The appellant appealed from trial decisions determining unresolved issues in a family law matter, including spousal support duration and quantum, child and spousal support arrears, equalization of post-valuation-day increases in corporate shares, disposition of a recreational property, and costs.

The trial judge determined the appellant's income for support purposes by excluding losses from a corporation used to fund his personal lifestyle, assessed the value of corporate shares considering personal benefits provided by the corporation, ordered payment for a recreational property, and awarded substantial costs to the respondent based on the appellant's unreasonable conduct and inadequate disclosure.

The Court of Appeal upheld all findings.

This is a costs decision in a child protection case concerning a motion by the mother for expanded access to two children.

The mother was substantially successful in obtaining a court-ordered schedule for expanded and unsupervised access, though the order included provisos allowing the Children's Aid Society to suspend access if safety concerns arose.

The mother sought costs on a full recovery basis against both the Society and the father.

The court declined to award costs against either party, applying the established principles that child protection cases are exceptions to the presumptive entitlement to costs, and that neither the Society nor parents should be penalized for acting in good faith within the statutory framework.

The appellant wife appealed a trial judge's decision on a change motion.

The Court of Appeal allowed the appeal in part, increasing the additional spousal support awarded by the trial judge due to the husband's early retirement and lump sum pension payout and other changed circumstances.

The court dismissed the wife's appeal challenging the denial of ongoing child support.

The parties were unable to agree on trial costs, and the court addressed this issue in a costs endorsement.

This trial judgment addresses various family law issues following a marital separation, including spousal and child support, the valuation of a corporate interest, and an oppression remedy claim.

The court found the respondent's financial disclosure and credibility severely lacking, leading to adverse inferences regarding his income.

The respondent's income for support purposes was imputed by disregarding corporate losses that primarily served his personal lifestyle.

The applicant's claim for an oppression remedy was dismissed on procedural grounds due to prior partial minutes of settlement that did not list it as an outstanding issue.

Appeal of a motion judge's decision on a change motion brought by the wife following the husband's early retirement and acceptance of an early pension payout.

The motion judge dismissed the wife's claim for child support for the youngest child and varied spousal support to $5,000 per month, significantly below the Spousal Support Advisory Guidelines range of $6,000 to $8,000 per month.

The Court of Appeal allowed the appeal in part, dismissing the child support claim but allowing the spousal support appeal.

The appellate court found the motion judge erred in departing from the Guidelines based on the "good luck" of the early pension payout and the wife's alleged financial mismanagement.

The court also found the motion judge misapprehended the Guidelines ranges and the parties' positions on the unequalized pension value.

The Court of Appeal substituted an award of $20,000 per month for 2012 and $8,500 per month for 2013, with future support calculated by deducting 31.78 per cent of annual pension payouts from the husband's line 150 income.

The Applicant sought full indemnity costs of $21,661.06 for motions previously decided.

The Respondent argued for no costs or a proportional award.

The court reviewed the outcomes of the prior motions, noting the Applicant's success on significant issues like interim spousal support and production orders, and the Respondent's refusal of a settlement offer.

The court found the Respondent's overall litigation strategy to be one of delay, aiming to force a favourable settlement.

Consequently, the court awarded the Applicant $18,000 in costs, payable forthwith, to be treated as costs incurred to obtain spousal support, reflecting full indemnity less a minor adjustment for the Respondent's partial success on two minor motions.

The respondent brought a motion to sever the divorce from corollary relief.

The applicant opposed the motion on the basis that the respondent had failed to provide adequate financial disclosure and that reasonable arrangements for child support had not been made.

The court dismissed the motion, finding that under s. 11(1)(b) of the Divorce Act, it had a duty to satisfy itself that reasonable arrangements for child support were in place before granting a divorce, which could not be determined due to the respondent's lack of disclosure.

The applicant spouse brought a motion for interim spousal support and an advance for litigation expenses following a long marriage and separation.

The respondent opposed entitlement, argued the applicant was intentionally underemployed, and sought disclosure relating to the applicant’s cohabiting partner while also requesting his own advance for costs.

The court found the applicant established a prima facie entitlement to support arising from the traditional marriage and her economic disadvantage.

Due to the respondent’s failure to provide disclosure necessary for an expert income report, the court accepted an interim income figure including an added-back amount for business expenses.

Interim spousal support was ordered below the Spousal Support Advisory Guidelines range to account for contributions from the applicant’s cohabiting partner, while both parties’ requests for advance costs were dismissed and the disclosure request adjourned.

In this family costs endorsement following a dispute over early retirement, child support, and spousal support, the court determined the appropriate costs award after both parties delivered offers to settle.

Although success was divided, the responding party on the original application was substantially more successful on the central issue of ongoing spousal support and obtained a result more favourable than his offer.

The court applied the Family Law Rules governing presumptive costs, settlement incentives, and reasonableness of quantum, while declining to award a blank cheque notwithstanding the potential full indemnity consequences of the offer.

A costs award of $45,000 was ordered against the applicant.

The applicant mother brought a motion to change a final order to increase spousal support and continue child support for the parties' 23-year-old daughter.

The respondent father had taken early retirement, receiving a large pension payout, and subsequently returned to work as a consultant.

The court found that the daughter was no longer a 'child of the marriage' as her online continuing education courses did not constitute a reasonable educational plan, terminating child support.

The court found the father's early retirement constituted a material change in circumstances.

Applying the rule against double-dipping, the court determined the unequalized portion of the father's pension to be considered for support.

The court declined to strictly apply the Spousal Support Advisory Guidelines due to the mother's unreasonable post-separation financial decisions, and ordered the father to pay increased spousal support of $5,000 per month.

The applicant brought a motion to vary existing child and spousal support orders following the respondent’s earlier-than-expected retirement and pension payout.

The court found a material change in circumstances sufficient to justify reconsideration of spousal support but dismissed the claim for continued child support.

The judge identified unresolved issues regarding the proper actuarial treatment of the pension payout and the appropriate calculation of spousal support, including whether the Spousal Support Advisory Guidelines should apply.

The court sought further submissions from counsel and potentially the actuaries to determine the correct approach before finalizing the variation.

In a high-conflict parenting dispute, the mother sought a declaration that the father breached a prior court order requiring him to make all reasonable efforts to support a shared parenting schedule.

Evidence showed the children had lived exclusively with the father for several years and had become estranged from their mother.

The court found multiple instances where the father failed to co-parent or support the residential arrangements, including unilateral decision‑making, permitting the children to determine their residence contrary to the order, and failing to meaningfully participate in court‑ordered reunification therapy.

A separation agreement resolving financial matters did not displace the prior parenting order.

The court declared the father in breach of the order but granted him sole custody given the children’s ages, the passage of time, and the existing status quo.

The parties entered into a separation agreement in 2005 to share the children's special expenses equally instead of following the Child Support Guidelines.

The appellant father defaulted in 2008 and sought to terminate his contractual obligations, claiming a material change in circumstances due to declining income and an inability to liquidate capital.

The application judge dismissed his request, finding the circumstances were foreseeable when the agreement was signed.

The Superior Court and the Court of Appeal upheld this decision, confirming that foreseeability is central to the test for varying contractual child support obligations.

The applicant mother sought the return of her nearly six-year-old daughter to Trinidad under the Hague Convention on International Child Abduction.

The respondent father had wrongfully removed the child from Trinidad in November 2011 and retained her in Canada for approximately two and a half years without the mother's consent or acquiescence.

The father argued that Trinidad was not the child's habitual residence and raised defences under Articles 12 and 13 of the Convention, claiming the child was settled in her new environment and that return would pose a grave risk of harm.

The court found that Trinidad was the child's habitual residence, the removal was wrongful, the child was not sufficiently settled in Canada to invoke the Article 12 exception, and the Article 13 defences lacked credible evidence.

The court ordered the child's return to Trinidad in the mother's care.

The appellant father appealed a decision of the Ontario Court of Justice dismissing his motion to vary a separation agreement governing child support obligations and quantifying arrears for special expenses.

The father argued that a material change in circumstances existed due to a decline in his income and an increase in the mother’s means, and that the trial judge erred by failing to adjust his support obligations accordingly.

Applying the principles from Willick v. Willick and the deferential appellate standard described in Housen v. Nikolaisen and Hickey v. Hickey, the court held that the alleged financial deterioration was foreseeable and largely the result of the father’s own choices regarding employment and business ventures.

Because the circumstances relied upon were apparent at the time the agreement was executed and did not constitute a qualifying material change, the refusal to vary the agreement was upheld.

The respondent mother’s cross‑appeal seeking trial costs was also dismissed, as the costs determination fell within the trial judge’s discretion.

The appellant appealed the dismissal of her motion to change child and spousal support and the denial of her request for an adjournment.

The Court of Appeal found no error in the motion judge's exercise of discretion to deny the adjournment, noting the request was not supported by the record.

The Court also upheld the dismissal of the motion to change, finding the motion judge's determination of the respondent's income was supported by the evidence.

The appeal was dismissed, but no costs were awarded as the respondent had breached the underlying child support order.

The applicant brought a motion to change seeking an increase in child support under an existing divorce order.

The respondent opposed the increase and brought a cross‑motion seeking termination of a nominal $1 per year spousal support order.

The court found the respondent’s guideline income to be approximately $191,500 after adjusting professional expense deductions and concluded the guideline table amount was less than the $2,600 monthly support already being paid.

The court ordered no change to the existing child support but directed that verified section 7 expenses be shared proportionately based on the parties’ respective incomes.

The respondent’s request to terminate the nominal spousal support order was also refused due to insufficient evidentiary basis.

The father appealed a trial judge's decision granting sole custody of the child to the mother, and the mother cross-appealed the dismissal of her motion to vary spousal support.

The Court of Appeal allowed the father's appeal, finding that the trial judge erred by varying the existing joint custody order without first establishing a material change in circumstances as required by section 17 of the Divorce Act.

The court noted that the parties' high-conflict relationship was foreseeable and did not constitute a material change.

The mother's cross-appeal regarding support and section 7 expenses was dismissed.

The respondent sought costs of the appeal on a substantial indemnity basis, arguing the appellant's conduct was egregious.

The Court of Appeal rejected this submission, finding the appeal was not vexatious or devoid of merit.

Costs were awarded to the respondent on a partial indemnity basis, fixed at $8,500 plus GST.

The appellant appealed a trial judgment regarding the equalization of net family property.

The trial judge found that the appellant had a beneficial interest in a property that had value on valuation day, despite not having legal title.

The Court of Appeal upheld the trial judge's finding, noting that the definition of 'property' in the Family Law Act is broad enough to include a beneficial interest.

The appeal was dismissed with costs.