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.

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.

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.