Ilana Zylberman Dembo

A non-party brought a motion to be added as a respondent or, alternatively, to be granted leave to intervene in a family law application concerning parenting time and decision-making authority for a child.

The non-party is the biological father of the respondent's older child and has developed a close relationship with the subject child through his co-parenting arrangement with the respondent.

The court dismissed the motion, finding that the non-party did not meet the statutory criteria under the Children's Law Reform Act or the procedural requirements under the Family Law Rules for being added as a party or for intervention.

The court held that the non-party had no legal interest in the application and that his presence was not necessary to determine the issues between the applicant and respondent.

The Court of Appeal for Ontario dismissed a motion by Rajinder Singh Rathee to amend a previous appellate decision regarding the quantum of lump sum spousal support.

The court held that the alleged error was not a clerical or accidental slip within the meaning of Rule 59.06(1) of the Rules of Civil Procedure, but rather a substantive disagreement with the court’s reasoning.

The motion was dismissed and costs were awarded to Noelle Heen-Lune Rathee.

The Court of Appeal for Ontario heard an appeal concerning spousal support.

The husband appealed a Superior Court decision that significantly increased his lump sum spousal support obligation to the wife from an arbitration award.

The Court of Appeal found that both the appeal judge and the arbitrator erred in their application of the Spousal Support Advisory Guidelines (SSAGs).

The appeal judge failed to give deference to the arbitrator's findings and ignored relevant factors, while the arbitrator failed to adequately explain the departure from SSAGs.

The Court of Appeal substituted its own award, increasing the lump sum spousal support to $678,888 (from the arbitrator's $250,000, but less than the appeal judge's $1,893,603) and awarded the wife $100,000 in arbitration costs.

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 husband brought a motion to correct the calculation of a spousal support award previously set aside and substituted by the court on appeal.

He argued for a "netting-down" of the retroactive sum to account for after-tax costs and benefits, or to address an undecided issue.

The court dismissed the motion, finding that present-value calculations were inappropriate for arrears and that the income tax implications did not warrant a reduction.

The judge emphasized that the husband had deliberately avoided paying spousal support and should not benefit from tax advantages he forewent, citing public policy against rewarding such conduct.

The applicant mother sought to relocate their 10-year-old son from Toronto to Naperville, Illinois, due to a job promotion.

The respondent father opposed the relocation.

The court determined the burden of proof was shared, as the child did not spend "vast majority" or "substantially equal" time with either parent.

After a holistic assessment of the child's best interests, considering relocation-specific and general factors, the court denied the mother's relocation application.

The court found the father discharged his burden that relocation was not in the child's best interests, citing concerns about the impact on the child's relationship with the father, disruption to schooling, and the mother's willingness to foster a meaningful co-parenting relationship.

Joint decision-making was ordered, and a divorce was granted.

The appellant wife appealed a family law arbitrator's award of $250,000 in lump sum spousal support and costs to the respondent husband.

The husband, a high-earning ophthalmologist, had promised upon separation in 2013 to settle his support obligations later, but paid no spousal support for nine years.

The Superior Court found the arbitrator erred in law by failing to apply the Spousal Support Advisory Guidelines (SSAGs) and by misapplying the criteria for lump sum awards to arbitrarily reduce the retroactive support owed.

The court held the husband was estopped from relying on the wife's delay due to his prior promise.

The appeal was allowed, the spousal support award was increased to $1,893,603, and costs of the arbitration were awarded to the wife.

The applicant brought a motion seeking the production of a corporate server (Decentral Server) for disclosure purposes, arguing the respondents had not adequately searched it.

This request had been previously dismissed by Justice Kiteley.

The applicant sought to revisit the prior decision, asserting new material facts, including the respondent's alleged failure to comply with an offer to conduct further searches and new expert evidence on e-discovery methods.

The court dismissed the applicant's motion, finding that the alleged new facts were either not fundamentally different from what was previously argued or could have been discovered with reasonable diligence at the time of the original motion.

The court affirmed that interlocutory orders are binding unless new, material, and previously undiscoverable facts are presented.

The applicant sought an urgent order to compel the respondent's attendance for cross-examination on an affidavit, following the respondent's refusal to attend due to the applicant's intention to have an expert assist counsel.

The court addressed the respondent's unilateral refusal to attend and the issue of whether leave is required for an expert to assist counsel at an out-of-court examination.

The court found that counsel do not need leave to bring assistants, including experts, to examinations, and that the onus to exclude such individuals lies with the party alleging prejudice.

The respondent's motion to exclude the expert was dismissed, and the respondent was ordered to attend cross-examination.

The applicant mother brought a motion for interim child support against both the biological father and the step-father who stood in the place of a parent.

The biological father agreed to pay a monthly amount based on his reported income.

The step-father argued the motion should be adjourned until the biological father's true income could be determined, alleging intentional underemployment.

The court refused to adjourn the motion, finding it contrary to the child's best interests.

The court ordered the step-father to pay $1,609 per month in interim child support, calculating his obligation using a 'top-up' method based on the parents' combined incomes.

The court also granted in part the step-father's cross-motion for financial disclosure from the biological father, ordering production of tax returns and investment statements but finding requests for corporate valuations and tracing to be disproportionate.

The applicant's motion for disclosure was dismissed, making the corporate respondents presumptively entitled to costs.

However, the court found that the corporate respondents behaved unreasonably by relying on an inadmissible affidavit and failing to respond to the court's directions regarding their conduct.

As a result, the court discounted their partial indemnity costs by 25% and ordered the applicant to pay $7,500 in costs.

The applicant sought costs following a successful motion for interim spousal support and disclosure of cryptocurrency holdings.

The court reviewed the parties' offers to settle and found the applicant beat her offer regarding spousal support and met her offer regarding native file format disclosure.

The applicant was awarded costs of $104,533 on a substantial recovery basis.

The corporate respondents were successful on a discrete issue regarding a server and were awarded costs of $12,600 on a partial indemnity basis, to be paid from the applicant's costs award.

The applicant brought a motion seeking production of a lawyer's file, arguing she had an explicit or implicit solicitor-client relationship with him, or alternatively, that the respondents waived privilege.

The lawyer had acted for the respondent and the corporate respondents during a period when the parties were allegedly involved in a joint family venture involving cryptocurrency.

The court found the applicant failed to establish a solicitor-client relationship, as the few documents she relied on were insufficient to show she was led to believe he was her lawyer.

The court also found no evidence that the respondents waived privilege.

Although the motion was dismissed, the court struck significant portions of the respondent's affidavit for relying on inadmissible hearsay in breach of the Family Law Rules.

Jennifer Leitch sought an order to immediately list and sell the matrimonial home (the "Farm") without Anthony Novac's consent and to retain the net proceeds.

Anthony opposed, seeking to participate in the sale and have proceeds held in trust, with certain amounts paid to him for costs and chattels.

The court found Anthony unreasonably withheld consent by imposing conditions.

The court authorized Jennifer to sell the Farm with sole authority over negotiations and closing, subject to agreed-upon terms for listing and a minimum price.

The net proceeds, after payment of a $5,000 Divisional Court costs order, are to be released to Jennifer, rejecting Anthony's request to hold them in trust or for immediate payment of other claimed amounts, to ensure Jennifer's access to justice for ongoing complex litigation.

The appellant wife sought damages for conspiracy against her husband and his family, alleging they diverted business proceeds to reduce her support payments.

The motion judge granted partial summary judgment dismissing the conspiracy claim and awarded substantial costs against the wife.

On appeal, the Court of Appeal found that the motion judge erred by improperly bifurcating issues, misapplying the tort of conspiracy in the family law context, and making palpable factual errors regarding critical evidence.

The Court emphasized that the tort of conspiracy is a valuable tool to deter non-disclosure and ensure collectibility of judgments in family law.

The appeal was allowed, the partial summary judgment and associated costs orders were set aside, and a new trial was ordered before a different judge.

The Applicant sought an urgent motion to impose strict COVID-19 physical distancing measures on the Respondent and to suspend his parenting time, citing concerns about his adherence to protocols.

The Respondent brought a cross-motion for an immediate 50/50 parenting schedule.

The court dismissed both the Applicant's motion for specific protocols and the Respondent's cross-motion for a new schedule, finding neither urgent nor justified.

The court emphasized the presumption of continuing existing parenting arrangements and ordered the parties to follow government health directives and agree on make-up parenting time for the Respondent.

In a high-conflict family law proceeding, the applicant wife brought a motion to compel further production of documents and answers to undertakings from the respondent husband and his father, alleging they conspired to conceal the husband's income and assets.

The court dismissed the request for pre-2012 documents as irrelevant to the conspiracy claim.

However, the court ordered the mass production of post-2012 emails, finding the respondents' search terms too limited, and ordered the production of certain solicitor-client files, finding the father had waived privilege by relying on a specific privileged communication to defend against the conspiracy claim.

In a divorce proceeding, the applicant husband sought extensive financial disclosure from the respondent wife regarding a family trust (Oceana Trust) and gifts she received from her late mother.

The husband argued this information was necessary to impute income to the wife for spousal support purposes and to calculate net family property.

The court reviewed the principles for imputing income from capital and trusts, finding that the historical gifts and trust distributions were sporadic capital amounts used for specific purchases, not income.

The court ordered limited disclosure of recent gifts and estate distributions but dismissed the husband's requests for historical trust financial statements, tax returns, and other remote documents, finding them irrelevant and an unwarranted intrusion on the privacy of other beneficiaries.