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.

In this family trial arising from a long-running marriage breakdown, the court determined the enforceability of an Islamic Mahr, child support and section 7 expenses, equalization, post-separation property adjustments, and spousal support.

The court set aside the Mahr because the parties did not read Arabic, there was no reliable evidence of negotiation or informed consent, and the court was not satisfied the husband understood the nature of what he signed.

For child support, the court accepted the applicant's accounting evidence, declined to impute additional income for intentional underemployment, imputed at least $200,000 income to the respondent due to unreliable disclosure, and ordered ongoing table support based on $500,000 income with equal sharing of specified section 7 expenses.

The court ordered the respondent to pay equalization and post-separation adjustment amounts, and dismissed the respondent's retroactive and ongoing spousal support claims for lack of compensatory or needs-based entitlement.

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

The Court of Appeal held that the trial judge erred in treating a debt extinguished by bankruptcy shortly after the marriage as a date of marriage debt, valuing it instead at zero based on the likelihood of repayment.

The Court also found the trial judge erred in setting aside a pre-trial settlement agreement regarding a leased car based on common mistake, as the mistake did not go to the root of the agreement and the respondent was partially at fault.

The trial judge's factual findings regarding the respondent's date of marriage debt and the appellant's post-separation use of a joint line of credit were upheld.

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.

The appellant appealed a motion judge's decision refusing to order the respondent to pay a proportionate share of their daughter's tutoring expenses.

The Divisional Court found that the motion judge erred in law by failing to properly apply the definition of 'extraordinary expenses' under s. 7(1.1) of the Child Support Guidelines, specifically by not considering the appellant's income and ability to cover the expense.

The appeal was allowed and the matter remitted for a rehearing.

The appellant appealed a divorce judgment that awarded sole custody of the parties' biological child to the respondent and determined the respondent's child from a former relationship was a child of the marriage.

The appellant argued the trial judge erred by refusing an adjournment to allow him to retain counsel and by misapplying the Child Support Guidelines.

The Court of Appeal dismissed the appeal, finding the refusal to adjourn was a proper exercise of discretion given prior adjournments and lack of prejudice.

The Court also found no error in the child support order, noting the appellant failed to cross-examine the biological father on his ability to pay or demonstrate how shared custody provisions were triggered.

The appellant mother appealed an order granting joint custody of the parties' six-year-old daughter and denying her request to relocate to Australia with the child.

The Court of Appeal found that the application judge's findings of a de facto shared parenting arrangement and effective communication between the parents were supported by the evidence.

The court also upheld the finding that a move to Australia would disrupt the child's life and relationship with the respondent father without providing any real benefit.

The appeal was dismissed.

The appellant father appealed the dismissal of his Hague Convention application for the return of his child to the United States.

The mother had moved with the child from Florida to Ontario when the child was two and a half months old.

The Court of Appeal upheld the application judge's findings that the child was not habitually resident in Florida, that the father was not actually exercising custody rights at the time of the move, and that the father subsequently acquiesced to the child remaining in Ontario.

The appeal was dismissed.