Jordan D. McKie

The moving party brought a motion for leave to appeal a prior decision.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 inclusive to the responding party.

The applicant sought to set aside a Separation Agreement executed on October 19, 2023, along with two ancillary documents (Schedule B and an Addendum), on grounds of failure to disclose significant assets, lack of understanding of the nature and consequences of the agreement, duress, lack of consensus ad idem, and unconscionability.

The court found that the respondent failed to disclose the value of his Ontario Teachers' Pension Plan as a divisible asset.

The applicant signed the agreement under economic duress, having committed to an unconditional condo purchase and needing the buyout funds to close.

The agreement was found to be unconscionable, particularly regarding the waiver of spousal support and pension claims.

The court set aside all three documents and ordered that the matter proceed to a second phase to determine equalization of net family property, spousal support, and other outstanding issues.

The parties agreed that the buyout of the matrimonial home at $600,000 would not be disturbed.

This decision addresses interim parenting arrangements and school registration for the child of Jason Kyle Sheedy and Karen Nadine Shackelton following their separation.

The court considered the best interests of the child, the parties' conflicting evidence, and the need for stability.

The court ordered that the child be enrolled at Caradoc Public School and set out a detailed interim parenting schedule, balancing time between both parents and emphasizing the importance of following court orders.

The applicant moved for a post-judgment Mareva injunction in aid of execution, alleging the respondent intended to sell his home and move to Mexico to avoid paying child support and costs.

The court found the applicant established a strong prima facie case that there was a risk the respondent intended to remove assets from the jurisdiction.

The balance of convenience favoured granting the injunction, which was ordered to remain in effect for 120 days.

The father brought a motion to change a consent final order to seek primary residence and sole decision-making for the parties' younger child, alleging the mother had alienated the children from him.

The mother opposed the motion and sought sole decision-making.

The court held a voir dire and admitted the children's out-of-court statements to an OCL clinician and a reunification therapist under the principled approach to hearsay and the state of mind exception, rejecting a claim of case-by-case therapy privilege.

The court found no parental alienation by the mother.

The court dismissed the father's motion and granted the mother sole decision-making and primary residence, finding that the father had fabricated email evidence to mislead the court and that the child's strong preference was to reside with the mother and have parenting time at her discretion.

The appellant father appealed a parenting order, seeking sole decision-making responsibility and exclusive residence for the children due to alleged parental alienation by the respondent mother.

The trial judge had previously found alienation but declined to reverse custody due to intervening circumstances (father's new child, pandemic, children's immediate mental health).

The Court of Appeal admitted fresh evidence from a psychologist but dismissed the appeal, finding no error in the lower court's holistic assessment of the children's best interests, which prioritized their immediate mental health and stability over a disruptive custody reversal, especially given the new family dynamics and pandemic stressors.

The court ordered a brief review hearing in one year to ensure compliance with therapy orders.

The appellant appealed a trial judge's decision to impute an income of $50,000 to the respondent for purposes of calculating spousal support.

The trial judge had found that the respondent was intentionally underemployed and determined that he was capable of earning between $35-$40 per hour, equivalent to approximately $75,000 annually for at least two-thirds of the year.

The Court of Appeal found no palpable and overriding error, no legal error, nor any error in principle in the trial judge's determination and dismissed the appeal.

The applicant father brought a motion seeking an order to permit him to travel with the parties' child to Croatia for three weeks.

The respondent mother consented to a two-week trip but opposed the three-week duration, citing concerns about the child's routine, lost parenting time, and adjustment to Junior Kindergarten.

The court, applying the "best interests of the child" test, found no plausible risk in the three-week trip and emphasized the child's opportunity to connect with his heritage and extended family.

The motion was granted, allowing the father to travel for three weeks, with conditions for the mother to have additional time upon return.

The father was denied costs due to his unilateral booking of the trip and delay in bringing the motion.

The applicant sought an order to make a previously awarded trial costs order, fixed at $80,510 against the respondent, enforceable by the Director under the Family Responsibility and Support Arrears Enforcement Act, 1996 (FRSAEA).

The costs were awarded after the respondent's spousal support claim at trial was dismissed.

The court, relying on appellate decisions in Clark v. Clark and Reisman v. Reisman, found no principled reason to deny enforcement by the Director, emphasizing a broad interpretation of "support order" under s. 1(1)(g) of the FRSAEA to include costs related to a dismissed support claim.

The court granted the applicant's request, deeming the costs order a "support order" enforceable by the Director.

Following a 27-year marriage, the applicant sought ongoing and retroactive spousal support.

The respondent, who had previously earned a significant income in construction, experienced periods of unemployment and took lower-paying jobs, claiming it was no longer financially viable to continue his previous work.

The court found the respondent was intentionally underemployed, relying on text messages where he stated he would not pay support and his subsequent employment history.

The court imputed the respondent's income at $50,000 and ordered indefinite spousal support of $729 per month, fixing arrears at $51,060.

Following a trial where the respondent's claim for increased spousal support was dismissed, the successful applicant sought full indemnity costs of over $212,000.

The court rejected the application of civil rules scales of costs, applying the Family Law Rules principles of reasonableness and proportionality.

Finding that both parties spent excessive amounts on legal fees and failed to adhere to the principle of proportionality, the court fixed the applicant's costs at $80,510, ordering them payable in monthly installments of $620 to coincide with the respondent's ongoing receipt of spousal support.

The court reviewed written costs submissions from both parties.

Noting recent amendments to the Family Law Rules regarding costs factors and a recent Court of Appeal decision on costs principles, the court invited the parties to file supplementary written submissions limited to these new developments.

The applicant brought a motion for security for costs, seeking disclosure of the respondent's lawyer for her home sale, a certificate of pending litigation, and an order to hold net proceeds from the sale in trust until trial costs were determined.

The motion was dismissed.

The court found that the applicant's belief that the respondent was attempting to hinder costs recovery was speculative and that none of the enumerated grounds for security for costs under r. 24(13) of the Family Law Rules were satisfied.

The respondent's reasons for selling her home were found to be credible, and there was no evidence of a lack of assets in Ontario or that the case was a waste of time or nuisance.

The respondent, Josephine Anne Shelley, sought an increase in spousal support contrary to an existing separation agreement.

The applicant, John Anthony Shelley, sought a divorce and brought a motion for non-suit against the spousal support claim.

The court applied the two-stage Miglin analysis to determine whether to override the separation agreement.

The court found no fundamental flaws in the negotiation or execution of the agreement, nor any significant departure from the objectives of the Divorce Act at the time of its formation.

The court also found that the current circumstances did not represent a significant departure from the reasonable outcomes anticipated by the parties.

Consequently, Mr. Shelley's motion for a non-suit was dismissed, and Ms. Shelley's application for increased spousal support was dismissed, upholding the terms of the separation agreement.

The applicant brought a motion for interim spousal support following the breakdown of a 30-year relationship.

The respondent, who previously earned over $78,000, quit his recent employment as a truck driver and applied for Employment Insurance.

The court found the respondent to be intentionally unemployed and imputed an annual income of $65,000.

Applying the Spousal Support Advisory Guidelines, the court ordered the respondent to pay interim spousal support of $1,885 per month.

The applicant moved for temporary spousal support and the respondent cross-moved to vary a temporary parenting schedule to increase his access.

The parties have a special needs child requiring constant care, limiting the applicant's employment.

The court ordered the respondent to pay mid-range temporary spousal support of $1,070 per month, declining to impute a higher income to the applicant or deduct the respondent's debt payments.

The court dismissed the respondent's cross-motion to vary the parenting schedule, finding insufficient compelling evidence to alter the status quo pending the upcoming trial.

The claimant sought $45,670.50 in child support arrears from the estate of her late ex-husband, dating back to a 1978 decree nisi.

The estate trustee contested the claim, arguing it was uncorroborated under s. 13 of the Evidence Act and partially statute-barred.

The court found the claimant's evidence of non-payment was corroborated by her current husband.

However, arrears accruing prior to January 1, 1984, were statute-barred under the former Limitations Act, and the doctrine of special circumstances did not apply to extend the period.

Applying the DiFrancesco factors, the court ordered the estate to pay the enforceable arrears of $20,275.