Kenneth Younie

This long motion addressed interim parenting and exclusive possession of the matrimonial home in a high-conflict separation involving six children.

The Respondent mother sought primary residence and exclusive possession, while the Applicant father sought equal parenting time.

The court granted the mother exclusive possession, finding the shared "nesting" arrangement exacerbated conflict.

For parenting, the court ordered a split schedule: the three younger children would continue with almost-equal time, while the three older adolescents would reside primarily with the mother, with regular scheduled time with the father and an option for additional time.

The court emphasized the children's best interests, the detrimental effects of parental conflict, and the need for both parents to support the children's relationship with the other.

The applicant brought a motion to strike the respondent's pleadings for failure to comply with a prior financial disclosure order and to compel the respondent to obtain an expert valuation of his jewelry business.

The court found the respondent in breach of the disclosure order but declined to strike his pleadings immediately, instead granting him 21 days to comply.

The court also ordered the respondent to obtain an expert business valuation at his own expense due to his inconsistent evidence regarding the business's value.

No costs were awarded due to divided success on the broader motion and the respondent's unreasonable conduct.

The applicant brought a motion seeking an order compelling the respondent to buy her interest in the matrimonial home, arguing they had reached a binding agreement.

In the alternative, she sought to vary a previous order to dispense with the respondent's consent to sell the home and to hold 50 percent of the sale proceeds in trust.

The court found that the parties had not reached an agreement on all essential terms and that specific performance would not be appropriate even if they had.

The court declined to dispense with the respondent's consent but imposed strict conditions to prevent him from frustrating the sale.

The court also varied the previous order, directing that 50 percent of the sale proceeds be held in trust pending trial to preserve the applicant's potential claim for damages.

Following an urgent motion where the applicant father successfully obtained an order for the return of the parties' child from India, the court determined the issue of costs.

The court found that the respondent mother's unilateral retention of the child in India was calculated and unreasonable, warranting sanction.

The applicant was awarded costs of $17,000 on a near full indemnity basis.

The parties, who separated in 2010, disputed the use of a jointly subscribed RESP to fund their daughter's university education.

The applicant father sought to split the RESP based on relative contributions, while the respondent mother sought sole carriage of the RESP to fund the education without providing further financial disclosure.

The court found it lacked authority to split the RESP.

Applying the three certainties of trust, the court held that the separation agreement created an express trust over the RESP for the children's education.

Given the high-conflict nature of the case, the court granted the mother sole authority to disburse the RESP funds for post-secondary expenses.

The moving party sought a stay of two endorsements made by a case management judge pending a motion for leave to appeal to the Court of Appeal.

The underlying endorsements had dismissed several of the moving party's appeals as frivolous, vexatious, or an abuse of process under Rule 2.1.

The Divisional Court applied the RJR-MacDonald test and found no serious issue to be tried, no irreparable harm, and that the balance of convenience did not favour a stay.

The motion for a stay was dismissed.

The applicant father brought an urgent motion seeking an order that Ontario has jurisdiction over the parties' child and for the child's return from India.

The respondent mother had travelled to India with the child for a scheduled visit but refused to return to Ontario.

The court found that the child was habitually resident in Ontario under s. 22 of the Children's Law Reform Act and declined to yield jurisdiction to the courts in India.

The court ordered the respondent to return the child to Ontario within 30 days and made interim parenting and asset preservation orders.

The applicant father brought an urgent motion seeking an order that Ontario has jurisdiction over the parties' child and for the child's return from India.

The respondent mother, who travelled to India with the child for a vacation and did not return, sought an adjournment.

The court granted the adjournment but made an interim, without prejudice finding that the child is habitually resident in Ontario and that the court has jurisdiction under the Children's Law Reform Act, citing compelling documentary evidence of the family's life in Ontario.

Following the dismissal of the applicant's family law application on summary judgment as statute-barred, the court determined the costs to be awarded to the successful respondent.

The respondent sought full indemnity costs based on an early offer to settle for a without-costs dismissal.

The court found the respondent was entitled to costs and that the offer to settle triggered cost consequences.

After deducting fees for a legal assistant, the court fixed the respondent's costs at $15,000.

The respondent brought a motion for summary judgment to dismiss the applicant's claims for unjust enrichment and a constructive trust over a property.

The parties disputed when their romantic relationship ended, with the respondent claiming 2009 and the applicant claiming 2011.

The court applied the summary judgment framework and found no genuine issue requiring a trial, determining on the evidence that the relationship ended in January 2009.

Consequently, the applicant's claims, commenced in October 2020, were statute-barred under both the two-year and ten-year limitation periods.

The application was dismissed.

The respondent wife moved for summary judgment to dismiss the applicant husband's claim to set aside three domestic agreements (a Marriage Contract, a Separation Agreement, and an Amending Agreement).

The husband argued the agreements should be set aside under section 56(4) of the Family Law Act due to duress, undue influence, unconscionability, and lack of financial disclosure.

The court dismissed the motion for summary judgment, finding that the highly conflictual evidence, significant credibility issues, and allegations of a history of abuse created genuine issues requiring a trial.

This appeal concerns a matrimonial dispute over the equalization of net family property and a costs award.

The appellant challenged the trial judge's treatment of promissory notes (debts owed by the appellant to his corporations) in calculating net family property under a marriage contract that excluded corporate assets.

The appellant also sought leave to appeal a substantial costs award of $490,000.

The Court of Appeal upheld the trial judge's decision on both issues, finding no error in including the promissory notes as personal debts not excluded by the marriage contract, and finding the costs award was justified given the appellant's unreasonable litigation tactics.

The parties separated after a short marriage.

Prior to marriage, they signed a contract excluding the applicant's significant corporate assets from net family property but requiring him to pay child support for the respondent's two children from a previous relationship.

The applicant sought to set aside the child support provision, arguing he no longer stood in the place of a parent.

The court upheld the marriage contract, finding the applicant stood in loco parentis and that setting aside the provision would be unconscionable.

The court determined the applicant's income based on his spending habits rather than corporate profits, ordering child support for all three children and spousal support for five years.

The appellants appealed an order voiding transfers of funds used to purchase two condominiums, which were found to be fraudulent conveyances intended to defeat the respondent's claims for spousal and child support arrears.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's application of the badges of fraud to shift the evidential burden, nor in his assessment of fraudulent intent at the time of the transactions.

A motion to introduce fresh evidence was also dismissed for failing to meet the Palmer test.

The moving party sought an extension of time to appeal two orders in a high-conflict matrimonial proceeding: an order striking his pleadings for failure to pay costs, and a subsequent final order from an uncontested trial.

The moving party argued that as a self-represented litigant, he did not understand the implications of the order striking his pleadings.

The Court of Appeal dismissed the motion, finding that the moving party had a lawyer present when the consequences were discussed, failed to move promptly after learning of the final order, and failed to demonstrate that the final order resulted in any real injustice or substantive errors.

The appellant appealed a trial judgment that largely denied his motion to change child and spousal support and ordered him to pay significant arrears.

He argued the trial judge erred by denying an adjournment to retain counsel, imputing income without sufficient evidence, and ordering him to pay 100 percent of horse-related section 7 expenses.

The Court of Appeal dismissed the appeal, finding the trial judge properly exercised his discretion in refusing the adjournment, had a sufficient basis to impute income due to the appellant's failure to provide financial information, and correctly treated the horse-related expenses as section 7 expenses.