Jeffrey I. Rechtshaffen

The Court of Appeal for Ontario dismissed the appeal of Berge Marcarian from the trial judge’s determination of the date of separation in his marriage to Karen Nairi Kassabian.

The trial judge found the date of separation to be May 16, 2021, as asserted by the wife, rather than December 10, 2014, as claimed by the husband.

The appellate court held that the trial judge made no palpable and overriding error in her factual findings or application of the law, and that her reasons were sufficient.

The decision provides a comprehensive review of the legal principles and factors relevant to determining the date of separation in family law, emphasizing the objective, fact-driven nature of the analysis and the high deference owed to trial judges on such determinations.

This is an appeal from a family law trial decision concerning spousal support, child support, equalization, and unjust enrichment.

The appellant raised eight grounds of appeal, grouped into errors in income imputation for both parties, errors in equalization payment calculation (including business valuation and a marriage-date account receivable), and the dismissal of an unjust enrichment claim.

The Court of Appeal allowed the appeal in part, finding that the trial judge erred in disallowing a marriage-date deduction of $248,567 in the equalization calculation.

All other grounds of appeal, including those related to income imputation and the dismissal of the unjust enrichment claim, were dismissed.

The respondent's motion for fresh evidence was also dismissed, and no costs were awarded due to divided success.

The Applicant wife and Respondent husband, who are married, brought cross-motions concerning the arrears on three mortgages registered on their jointly owned property.

Each party accused the other of misappropriating funds leading to the defaults.

The Applicant sought a preservation order for the property and interim uncharacterized support.

The Respondent sought reimbursement of funds from the Applicant.

The court found both parties responsible for the arrears.

The Applicant was ordered to return $50,000 she unilaterally withdrew from a joint account, and the Respondent was ordered to cover the remaining outstanding mortgage payments.

Future mortgage payments were to be jointly shared.

The Applicant's requests for a preservation order and interim support were dismissed without prejudice, as the record was insufficient for interim relief and the support issue required a case conference.

The Applicant's request for a full accounting from the Respondent regarding construction costs was granted.

Parties were ordered to bear their own costs due to divided success.

The appellants, a husband and his brother, appealed a trial judge's equalization payment order to the wife, arguing errors in weighing factors under s. 10.1(4) of the Family Law Act regarding an immediate lump sum transfer from the husband's pension, and incorrect prejudgment interest calculation.

The Court of Appeal found no reversible error, upholding the trial judge's findings that the wife's pension waiver was under duress, the husband and his brother acted in bad faith, and the husband fraudulently conveyed property.

The trial judge's holistic review of financial circumstances and the decision to order an immediate lump sum transfer for equalization were affirmed as fair.

The prejudgment interest calculation from the date of separation was also upheld.

The appeal was dismissed with costs to the respondent.

The case determined the date of separation for a married couple, which was crucial for the limitation period of an equalization claim under the Family Law Act.

The applicant (Wife) asserted a later separation date (May 16, 2021), while the respondent (Husband) argued for an earlier date (December 10, 2014).

The court analyzed the parties' conduct and intent, applying factors from case law regarding living separate and apart while cohabiting.

The court found that despite a decline in intimacy and marital satisfaction, neither party took unequivocal steps to end the marriage until the applicant's clear communication in May 2021.

The Applicant father sought to reduce longstanding s.7 expense arrears owed for his two adult children.

The Respondent mother brought a cross-motion to update and fix the arrears based on actual expenses, including post-secondary studies, and for costs.

The court dismissed the Applicant's motion, finding he had not diligently pursued variation in Canada despite being aware of his obligations.

The court granted the Respondent's cross-motion, fixing the s.7 arrears at $83,432.08 plus interest, and ordered payment of previously awarded costs with interest, all collectible as child support.

In an uncontested trial following the striking of the Respondent's pleadings, the Applicant sought a declaration of resulting trust over the matrimonial home, equalization of net family property, resolution of retroactive support claims, and a divorce.

The court found that the matrimonial home was held in a resulting trust for the Applicant, as she had made all financial contributions and title was placed in the Respondent's name for liability purposes.

The court determined that the Applicant had significantly overpaid spousal support and dismissed all retroactive support claims by setting them to zero.

A divorce was granted, and the Applicant was awarded fixed costs.

The applicant sought costs following a successful motion for temporary child and spousal support.

The court awarded the applicant $20,000 in costs, inclusive of HST, payable within 30 days.

The decision considered the respondent's unreasonable conduct, including his failure to provide adequate income disclosure and consistent underpayment of support, which necessitated the applicant's extensive efforts to prove his income.

The court applied Rule 24(12) of the Family Law Rules, emphasizing the objective of fixing a reasonable, fair, and proportionate amount of costs rather than merely actual costs incurred.

This motion concerned temporary child and spousal support.

The applicant sought support based on an imputed income for the respondent, alleging significant non-disclosure and misleading statements regarding his business interests and assets.

The court found the respondent's evidence untruthful and incomplete, particularly concerning his hotel ownership and capital gains.

Consequently, the court imputed an income of $440,862 CND to the respondent for 2023, based on the family's pre-separation lifestyle and the respondent's current expenses.

The court ordered ongoing child and spousal support, along with retroactive payments for the period of January to September 2023.

In this family law matter, the Applicant mother sought a psychological/developmental assessment for the two children, while the Respondent father sought expanded parenting time and restrictions on changes to the children's residence or school.

The court dismissed both motions.

The mother's request for an assessment was denied as it was deemed an indirect attempt to circumvent a prior court order for family reintegration therapy, which had not occurred due to the mother's actions.

The father's request for expanded parenting time was denied as it was not considered in the children's best interests to experiment with new arrangements so close to the upcoming trial, and the evidence regarding the children's wishes was conflicting and untested.

The court emphasized maintaining the status quo until trial.

The applicant father brought motions to enforce a 2016 Offer to Settle for shared parenting and to strike certain paragraphs and exhibits from the respondent mother's affidavit, alleging breaches of confidentiality provisions under the Child and Family Services Act and a prior court order.

The respondent mother brought a cross-motion to permit the use of those documents and sought a s.30 assessment or, alternatively, the appointment of private counsel for the children.

The court dismissed the father's motion to enforce the Offer to Settle, finding it unreasonable given the children's changed circumstances and the high parental conflict.

The father's motion to strike the confidential material from the mother's affidavit was granted for the purpose of the current motion, but access to the protection file for trial was preserved.

The mother's motion for a s.30 assessment was dismissed, but her request for the appointment of private counsel for the children was granted, with costs to be shared by the parties.

The respondent, represented by the Public Guardian and Trustee (PGT), brought a motion to set aside the corollary relief of a default divorce order obtained by the applicant.

The PGT argued that the respondent, who has a history of mental illness, lacked the capacity to instruct counsel or understand the implications of not responding to the original application.

The court considered the respondent's fluctuating mental health, the applicant's knowledge of her condition, and the need for procedural and substantive fairness under the Family Law Rules.

The court granted the motion to set aside the corollary relief, ordered the production of counselling records to determine the correct valuation date, but dismissed requests for a non-depletion order and an immediate increase in spousal support.

The plaintiff, Devlan Construction Ltd., sought costs after successfully obtaining summary judgment against the defendant, 2345171 Ontario Inc. carrying on business as Guelph Medical Imaging, for $105,599.74.

Devlan requested costs of $61,158.24 on a substantial indemnity basis or $50,965.19 on a partial indemnity scale.

Guelph Imaging proposed fixed costs of $30,000.

The court considered factors under Rule 57.01 of the Rules of Civil Procedure, including the result, counsel experience, expected costs, amount claimed/recovered, complexity, importance of issues, and party conduct.

The court found that Guelph Imaging's arguments, though eventually withdrawn, required Devlan to provide detailed accounting.

The court fixed costs at $60,000.00 in favour of Devlan Construction Ltd.

This motion concerned interim spousal and child support and interim disbursements.

The parties resolved the interim disbursements issue by agreeing to a line of credit on their jointly owned home for the applicant's litigation costs.

The primary dispute revolved around the imputation of the respondent's income for support calculations.

The applicant sought support based on an imputed income of $350,000, while the respondent proposed $120,000.

The court imputed an income of $120,000 to the respondent, finding the applicant's higher figure speculative and not sufficiently grounded in evidence.

Temporary child and spousal support orders were made based on this imputed income, with the respondent also ordered to continue paying various third-party expenses for the home and the applicant's car.

No income was imputed to the applicant at this stage.

The appellant appealed a trial judge's decision in a family law matter concerning income imputation and asset division.

The trial judge found the respondent was unemployed and effectively unemployable based on medical evidence and refused to impute income.

The appellant challenged the trial judge's curtailment of cross-examination on the respondent's medical condition and the refusal to grant an adjournment for additional witnesses.

The Court of Appeal upheld the trial judge's decisions, finding no error in enforcing time limits, refusing the adjournment without reasonable explanation for late witness summoning, and finding that family assets were divided equally with the appellant purchasing Syrian properties from equalization proceeds.

A costs decision following dismissal of a contempt motion brought by the applicant father against the respondent mother.

The father sought full indemnity costs of $32,309.62, alleging the mother acted in bad faith by making repeated unfounded reports to child protection and police agencies.

The mother sought costs on a full indemnity basis from the date of her offer to settle.

The court found the mother acted unreasonably but not in bad faith, and declined to award costs to either party, balancing the mother's unreasonable conduct against the father's failure to serve an offer to settle or counter-offer.

The respondent father brought a motion for access to his child following a two-year termination of contact initiated by the applicant mother in January 2014.

The mother alleged the father had physically abused the child and was consuming alcohol excessively.

The court found that the child's stated fears of contact with the father were a product of the mother's manipulation and alienation.

Despite the child's expressed reluctance, the court ordered unsupervised access, finding that the father posed no risk and that the child required time alone with his father to form an independent view.

The court rejected supervised access as a stepping stone, finding it would perpetuate the mother's control and prevent reconciliation.

The respondent brought a motion regarding jurisdiction in a child support proceeding.

The applicant sought to vary a foreign child support order made in Maryland through either a Motion to Change or an Application under the Family Law Act.

The respondent argued the applicant must proceed under the Interjurisdictional Support Orders Act (ISOA).

The court held that jurisdiction to vary a foreign support order made corollary to a foreign divorce can only be derived from provincial legislation respecting enforcement of support orders, namely the ISOA.

The court stayed the Motion to Change and Application insofar as they related to support and ordered the applicant to proceed under the ISOA.