Keith Davis

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 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.