Kenneth Asher Fishman

The applicant mother sought the return of her two children to Costa Rica under the Hague Convention on the Civil Aspects of International Child Abduction, arguing they were habitually resident there and wrongfully retained in Canada by the respondent father.

The father contended the move to Costa Rica was temporary and the children's habitual residence remained Ontario.

The court applied the hybrid approach to determining habitual residence, considering parental intention and the children's acclimatization, and found that the children's focal point of life was Costa Rica as of August 11, 2023.

The application was granted, and the children were ordered to be returned to Costa Rica, as no exceptions to return applied.

This endorsement addresses two motions brought under Family Law Rule 25(19) to correct errors in a prior judgment.

The Applicant's motion sought to correct a misapprehension of evidence regarding a shared debt's quantum, which the court granted, adjusting the amount from $325,000 to $650,000.

The Respondent Imran Khan's motion sought to reduce a retroactive spousal support lump sum award by considering income tax consequences.

The court dismissed this motion, ruling that FLR 25(19)(b) and (c) do not provide jurisdiction to review discretionary decisions or errors of law, only typographical or mathematical errors, or matters not previously decided.

In this family law trial, the court determined issues of property ownership, equalization, and support following a 16-year marriage.

The court found that the shares of a lucrative cellular phone business were held in a bare trust equally for the applicant and respondent, but ascribed zero value to the business for equalization due to unreliable financial records.

The court ordered an equalization payment of $291,820.05 to the applicant, dismissed both parties' claims for unequal division and damages, and ordered the respondent to pay $700,000 in retroactive child and spousal support based on an imputed historical income of $2,000,000.

In the context of a complex family law and related debt action, the parties brought cross-motions to compel answers to undertakings and refusals from questioning.

The corporate respondent was petitioned into bankruptcy shortly before the hearing, triggering an automatic stay.

The court ordered the individual respondents to produce relevant corporate and personal records in their possession, control, or power, finding that the bankruptcy stay did not relieve them of their personal discovery obligations.

The court also ruled on various claims of solicitor-client and litigation privilege, ordering the disclosure of legal fee amounts but protecting the identity of counsel and legal advice.

The respondent brought a motion to vary an interim child and spousal support order, arguing that his business income had significantly declined due to the COVID-19 pandemic and that he had 'better information' as contemplated by the original order.

The court dismissed the motion, finding that the financial information provided by the respondent was incomplete, lacked independent expert corroboration, and did not constitute the 'better information' required to justify varying an interim support order.

The court also declined to adjust section 7 expenses, leaving that issue for the trial judge.

In a family law proceeding, the applicant sought disclosure of various corporate and financial records relating to businesses owned by the respondent and his family.

The court ordered disclosure of corporate financial records back to 2014 for business valuation purposes, as well as post-March 2020 records relevant to a pending motion to reduce support due to the pandemic.

The court also ordered the respondents to request accounting records from their accountants and to produce commercial leases subject to a confidentiality agreement and notice to landlords.

The Applicant and Respondent Imran Khan, separated spouses, were in litigation regarding the sale of a beneficially owned property titled in the names of Imran's parents (Zarinataj and Ishaq Khan).

The Respondents brought a motion to compel the sale of the property at an accepted offer price, which the Applicant opposed, arguing the price was too low.

The court addressed the urgency of the motion, the admissibility of a "without prejudice" settlement letter, and whether the motion should be heard despite Imran Khan's arrears in support payments.

The court found the matter urgent due to lost opportunity and ongoing expenses, ruled the settlement letter inadmissible due to settlement privilege, and allowed the motion to proceed despite arrears, citing the Applicant's dilatory conduct and the interests of the other Respondents.

The court ordered the property to be sold at the accepted offer, with a condition allowing the Applicant to litigate the reasonableness of the sale price at trial, and directed that any support arrears be paid from Imran Khan's share of the proceeds.

The court also recommended the appointment of a case management judge due to the contentious and complex nature of the case.

This endorsement addresses the issue of costs following a previous decision where the court refused to confirm a Provisional Variation Order.

The respondent, who successfully opposed the variation, sought costs.

The applicant failed to submit any arguments regarding costs despite being given an opportunity.

The court determined costs based on the respondent's submissions, awarding them on a partial indemnity basis, finding that full indemnity was not warranted.

The total costs awarded to the respondent were $16,964.21, inclusive of legal fees and disbursements.

The respondent successfully opposed the confirmation of a provisional variation order made in Nova Scotia.

She sought costs on a full or partial indemnity basis.

The court found the respondent presumptively entitled to costs due to her success and the applicant's conduct.

To afford the out-of-province applicant an opportunity to respond, the court remitted the matter back to the Nova Scotia Supreme Court under section 19(6) of the Divorce Act, granting the applicant 90 days to file written submissions on costs.

The applicant father sought to confirm a Provisional Variation Order from Nova Scotia that varied child support and post-secondary expenses under the Divorce Act.

The respondent mother opposed confirmation, arguing non-compliance with the Divorce Act and disputing the father's evidence regarding the children's residence and her financial contributions.

The court refused to confirm the provisional order, finding that the applicant failed to establish the jurisdictional requirements under section 18(2) of the Divorce Act and failed to prove a material change in circumstances, as the mother had been financially supporting the adult children directly.

This is a costs endorsement following the dismissal of a motion to change a custody and access order.

The father sought to modify a December 2016 consent order by requesting equal parenting time, a change to the child's school, and child support.

The mother successfully defended the motion and sought costs of $23,000.

The father proposed costs be fixed at $5,000.

The court awarded costs of $15,344.36, payable in monthly installments, finding that the father should have accepted the mother's settlement offer which was more favourable than the final result.

The court considered the father's financial circumstances, the straightforward nature of the matter, and the proportionality of costs in fixing the award.

The father of a six-year-old child sought the child's return to Texas pursuant to the Hague Convention on the International Return of Children and also sought to dismiss the mother's Ontario divorce application for lack of jurisdiction.

The application judge allowed both applications.

The mother appealed, challenging the findings on habitual residence, acquiescence, and intolerable situation.

The Court of Appeal dismissed the appeal, upholding the application judge's determination that the child's habitual residence was in Texas, that the mother had not established acquiescence or an intolerable situation, and that Ontario lacked jurisdiction over the divorce application.

In a high-conflict parenting dispute, the mother sought a declaration that the father breached a prior court order requiring him to make all reasonable efforts to support a shared parenting schedule.

Evidence showed the children had lived exclusively with the father for several years and had become estranged from their mother.

The court found multiple instances where the father failed to co-parent or support the residential arrangements, including unilateral decision‑making, permitting the children to determine their residence contrary to the order, and failing to meaningfully participate in court‑ordered reunification therapy.

A separation agreement resolving financial matters did not displace the prior parenting order.

The court declared the father in breach of the order but granted him sole custody given the children’s ages, the passage of time, and the existing status quo.

The appellant appealed a decision finding that he had repudiated an accepted offer to settle a family law dispute.

The appellant argued that his proposed separation agreement did not contain important changes or additions to the accepted offer.

The Court of Appeal disagreed, finding that the appellant's proposal to transfer control of the matrimonial home and another property to himself without specifying trust terms or time limitations was a fundamental alteration.

The court upheld the motion judge's application of the doctrine of repudiation and dismissed the appeal.