Jerry J. Chaimovitz

Following a second trial in a family law matter, the court determined the costs for both the first and second trials.

The first trial had been overturned on appeal due to inadequate reasons by the trial judge.

The court declined to award costs for the first trial, finding neither party at fault for its failure.

For the second trial, the applicant was substantially more successful and had made a reasonable offer to settle.

However, the court noted that both parties had unnecessarily lengthened the proceedings.

The court awarded the applicant partial indemnity costs of $150,000 for the second trial.

The applicant sought to set aside a marriage contract entered into with the respondent shortly after their marriage.

The contract provided for a regime of separate property and a waiver of spousal support unless the marriage lasted at least ten years.

The parties separated after three and a half years.

The applicant argued the contract should be set aside under section 56(4) of the Family Law Act due to lack of financial disclosure, failure to understand its nature and consequences, and unconscionability.

The court found that while the respondent failed to disclose significant assets, the applicant had independent legal advice, understood the contract, and there was no duress or unconscionability.

The court declined to exercise its discretion to set aside the contract.

The court also dismissed the applicant's claim to set aside the spousal support waiver under section 33(4), finding no unconscionable circumstances.

Both parties brought motions to change a final family law order.

The father sought to reduce or terminate his spousal support obligations due to the mother's increased employment income, while the mother sought to recover child care and activity expenses, and to change access driving obligations.

The court found a material change in circumstances, terminated spousal support, and ordered the mother to repay a net overpayment of $22,253.60.

The mother's claim for child care expenses was partially allowed, but her claims for activity expenses and changes to driving obligations were dismissed.

The applicant father sought the return of two young children to Croatia under the Hague Convention, alleging they were wrongfully retained in Ontario.

The respondent mother argued the parties had formed a shared intention to relocate to North America and had become habitually resident in Ontario prior to their separation.

The court assessed credibility and considered evidence including applications for social assistance, health coverage, employment in Ontario, and plans for subsidized housing.

The court found the parties had a common intention to reside in Ontario and were habitually resident there by February 2012, rendering the Hague Convention inapplicable.

In the alternative, the court found that returning the children to Croatia would expose them to a grave risk of harm due to abuse by the father.

Following separation and a separation agreement, the parties resolved most issues except child support adjustments and section 7 special or extraordinary expenses for the child’s soccer and hockey activities.

The court interpreted the separation agreement as requiring annual child support adjustments prospectively, with no provision for retroactive payments.

The court considered whether the claimed sports-related expenses qualified as extraordinary expenses under s. 7(1.1) of the Child Support Guidelines.

It held that expenses exceeding basic fees, including equipment, travel, accommodation, and meals associated with competitive participation, could qualify as s. 7 extraordinary expenses.

These expenses were to be shared proportionately based on the parties’ respective incomes.

The applicant brought a motion seeking to attribute increased income to the respondent for purposes of increasing child and spousal support, alleging that income was being diverted through businesses operated with the respondent’s current spouse.

Evidence indicated the companies shared operations, facilities, and financial arrangements, raising concerns that corporate structures were being used to shield income.

The respondent argued the issue should be determined at trial and that interim attribution would be prejudicial.

The court held that interim orders are appropriate pending trial and found the respondent’s declared income inconsistent with his lifestyle and business arrangements.

The court attributed income of $120,000 and ordered interim child and spousal support increases, and awarded partial indemnity costs for a previous motion.