Separation agreement

This eight-day trial addressed the validity of a Separation Agreement, child support, and parenting arrangements.

The court upheld the Separation Agreement as valid, allowing the applicant to purchase the matrimonial home for $50,000 plus prejudgment interest, with CRA liens to be resolved by the applicant paying the CRA directly.

The respondent's claims to set aside the agreement, for occupation rent, spousal support, and pension equalization were dismissed.

The court ordered the respondent to pay ongoing child support of $556 per month and retroactive child support of $15,819.72, along with 38% of past and future s.7 expenses (except post-secondary, which are 50/50).

Joint decision-making responsibility for the child was maintained.

The Applicant sought summary judgment to enforce child support provisions of a separation agreement, while the Respondent sought to stay the summary judgment and remit the matter to arbitration, and to appoint a specific arbitrator.

The court confirmed its jurisdiction to hear the matter, dismissed the Respondent's motion to adjourn the summary judgment, and granted the Respondent's request to stay the summary judgment application, remitting the matter to arbitration.

The court dismissed the Respondent's motion to appoint an uncertified arbitrator (William C. McDowell) and instead granted the Applicant's alternate request to appoint a certified family law arbitrator (Cheryl Goldhart), emphasizing the legal requirement for arbitrators to be properly credentialed for awards to be enforceable.

The respondent brought a motion to set aside or stay an automatic financial disclosure order, pending a summary judgment motion to determine the enforceability of a 1995 separation agreement that included a spousal support waiver.

The applicant argued that disclosure was necessary to defend against the summary judgment motion.

The court declined to order the full disclosure mandated by the automatic order (Rule 8.0.1 of the Family Law Rules), finding that the threshold issue of the separation agreement's validity should be determined first.

The court emphasized that current financial disclosure was not relevant to the validity of the 1995 agreement and that ordering it would be disproportionate and could derail the pending summary judgment motion.

The Applicant sought to have a separation agreement made a final order, retroactive application of the order, findings of breach against the Respondent, and financial penalties.

The Respondent filed a cross-motion for costs.

The court granted the request to make the separation agreement a final order but denied retroactive application.

It found the Respondent breached communication and ancillary terms of the agreement but declined to impose financial penalties under Rule 1(8) as the agreement was not yet a court order.

The court also denied the Respondent's request for costs for a previous ex-parte motion.

Further submissions on a temporary enforcement order and costs for the current motion were directed.

This motion concerned the interpretation and enforcement of a Separation Agreement, specifically its security provisions for spousal support, following the Respondent's terminal cancer diagnosis and alleged asset depletion.

The Applicant sought to prevent the Respondent from undermining her beneficial interest in his estate by transferring assets to their son.

The court found the Respondent breached the agreement by terminating a family trust and adding their son as a joint account holder to other accounts with the improper purpose of removing assets from the estate.

Applying principles of contractual interpretation and good faith, the court ordered damages for the trust breach as a first charge on the estate and enjoined the Respondent from further improperly depleting the large investment account or transferring assets to their son by survivorship or gift, while allowing for legitimate personal and medical expenses.

The mother appealed an arbitral award that enforced a shared parenting schedule previously agreed upon in an Amending Separation Agreement.

The court dismissed the appeal, finding no error in law by the arbitrator, who had properly considered and rejected the mother's arguments of duress and lack of true agreement.

The court emphasized the significant deference owed to arbitral decisions and characterized the appeal as unmeritorious.

Substantial indemnity costs were awarded to the father.

The applicant father sought full indemnity costs from the respondent mother following a successful motion where the mother was found to have acted in bad faith by unilaterally changing the children's school and residence in breach of a separation agreement.

The court reviewed the legal framework for costs, particularly Rule 24(8) of the Family Law Rules regarding bad faith.

The court found the mother's actions, including concealing information, deceiving the father and the school principal, and breaching the agreement, constituted bad faith.

The court awarded the father full recovery costs of $21,319.45, emphasizing that such an order was necessary to condemn and discourage the mother's self-help behaviour.

The Applicant mother's motion to bifurcate the trial was settled by consent.

The Respondent father brought a cross-motion seeking leave to compel the immediate partition and sale of the jointly owned matrimonial home or to obtain a $200,000 line of credit secured against his share.

The court dismissed the Respondent's cross-motion, primarily because he failed to obtain prior leave as mandated by a previous court order.

Addressing the merits, the court found that selling the matrimonial home would prejudice the Applicant's claims and was not in the child's best interests.

Furthermore, the court determined it lacked jurisdiction under the Family Law Act to compel the encumbrance of the matrimonial home against the Applicant's objection.

The respondent wife sought summary judgment to dismiss the applicant husband's application to set aside a separation agreement.

The husband's application sought to set aside the agreement based on non-disclosure, lack of understanding, and unconscionability, and sought relief related to parenting, support, and property equalization.

The court dismissed most of the husband's claims, including setting aside the agreement from its inception, varying a prior parenting order, and property equalization (due to limitation period and lack of merit).

However, the court found a genuine issue requiring a trial regarding whether the support provisions of the separation agreement resulted in unconscionable circumstances under s. 33(4) of the Family Law Act.

The husband failed to attend the motion despite multiple warnings.

The applicant, the only child of the deceased, sought a certificate appointing her as estate trustee with a will.

The deceased's will did not name an executor, and a separation agreement with his spouse (the applicant's mother) included a renunciation of her right to act as personal representative.

The estate was valued at $66,063.21, falling within the definition of a "small estate" under the Estates Act.

The applicant also requested an order dispensing with the requirement to post an estate administration bond.

The court granted the certificate of appointment, finding that the requirements of Rule 74.1 of the Rules of Civil Procedure and the Estates Act were met.

However, the court found the request to dispense with the bond unnecessary, as section 36(3) of the Estates Act already exempts small estates from the bond requirement, provided no minor or incapable beneficiaries exist, which was the case here.

The trial determined whether a 2015 Separation Agreement should be set aside as a sham under section 56(4) of the Family Law Act, and if so, the parties' separation date.

The court found the Agreement to be a sham because the parties were not separated, did not intend to separate, and did not intend to be bound by its terms when it was signed, using it primarily for tax advantage.

Consequently, the Agreement was set aside.

The court determined the actual date of separation to be December 18, 2019, when the husband physically left the matrimonial home and formed the intention to separate, rejecting the earlier date claimed in the Agreement and the later dates proposed by the wife.

The defendant, Timothy Elmore, faced charges including assault, mischief, breaking and entering, loitering, and uttering threats.

At the close of the Crown's case, the defence applied for a directed verdict on the first four charges, arguing insufficient evidence.

The Crown cross-applied to amend the information to conform with the evidence.

The court dismissed the assault charge, finding the contact accidental.

The mischief charge was dismissed as the damaged property was solely owned by the defendant.

The break and enter and loitering charges were dismissed because the defendant, as a legal owner with an equal right of possession to the matrimonial home, could not be found guilty of breaking into or loitering on his own property, absent a court order or enforceable agreement to the contrary.

The Crown's application to amend the information was denied due to potential prejudice to the defence.

The Respondent Mother moved to set aside the financial terms of a separation agreement, alleging unconscionable circumstances, lack of financial disclosure, material misrepresentation of income, and undue pressure by the Applicant Father.

The Applicant Father resisted, arguing the agreement was valid and enforceable.

The court found that the Respondent Mother had, with the assistance of experienced counsel, bargained away her right to financial disclosure and failed to establish unconscionability or exploitation of vulnerabilities.

The motion was dismissed.

The appellant sought to overturn a trial decision regarding pension division, arguing the trial judge misinterpreted a separation agreement by awarding a current pension value instead of a fixed amount.

The Court of Appeal dismissed the appeal, finding the trial judge's interpretation reasonable and consistent with the parties' objective intention for a pro-rata share of the pension's actual present value, and rejected the appellant's attempt to introduce fresh evidence as an abuse of process.

The respondent brought a motion to stay proceedings, arguing that a dispute resolution clause in the parties' separation agreement mandated binding arbitration for parenting time disputes under the Arbitration Act, 1991.

The applicant opposed, contending the clause did not meet the mandatory formalities for "secondary arbitration agreements" as required by Ontario Regulation 134/07.

The court found that while the clause intended to provide for secondary arbitration, it failed to include the necessary provisions stipulated by the regulation.

Consequently, the clause did not constitute an enforceable arbitration agreement under the Arbitration Act, and the court dismissed the respondent's motion to stay the proceedings.

The applicant mother sought retroactive and prospective child support arrears from the respondent father, alleging underpayment since 2016.

The respondent father sought reimbursement for alleged overpayments and a variation to shared parenting time.

The court granted the applicant's claim for $31,434 in retroactive child support arrears, finding the respondent's alleged overpayments and in-kind contributions did not offset the underpayment.

The court dismissed the respondent's request for shared parenting, maintaining the mother as the primary caregiver with increased but progressive parenting time for the father, and granted the mother final decision-making authority due to high conflict.

The court also set ongoing child support and special expenses.

The case concerns a father's motion to return a child (L.F.R.) to London, Ontario, and the mother's cross-motion to allow L.F.R. to remain with her in Springhill, Nova Scotia, following a relocation.

The court found the mother had complied with the separation agreement's relocation notice provisions and, alternatively, that the relocation was in the child's best interests, particularly given the child's transgender identity and the supportive environment in Springhill.

The father's motion was dismissed, and the mother's cross-motion was granted, allowing L.F.R. to remain in Springhill.

The Respondent brought a motion to remove the Applicant's counsel, Clarissa D’Avella, and her law firm, citing a conflict of interest.

The conflict arose from the Applicant's intention to call her previous counsel, Ms. Cebulak (who practices at the same firm as Ms. D’Avella), as a witness in a focused hearing concerning the validity of a separation agreement.

The court dismissed the motion, finding that the Respondent failed to demonstrate that the removal was necessary for the proper administration of justice.

The judge applied a flexible approach, considering factors such as the stage of proceedings, the likelihood and significance of the witness's testimony, the good faith of the moving party, and the litigant's right to choose counsel.

The court concluded that the potential for actual conflict or tainting of evidence was remote given the limited and non-controversial nature of the anticipated testimony and the measures proposed by the Applicant to mitigate concerns.

This decision resolves outstanding financial issues and costs following a partial settlement during a family law trial.

The court imputed income to the applicant for support purposes, determined proportionate shares for section 7 extraordinary expenses, and addressed claims related to the matrimonial home.

The respondent's claim for matrimonial home expenses was dismissed due to a prior separation agreement.

The court also made a costs order, finding mixed success on financial issues and ordering partial recovery costs, with a net amount payable by the respondent to the applicant.

This decision addresses the respondent's claim for costs following the applicant's unsuccessful attempt to set aside a separation agreement.

The court found the applicant's claims lacked evidentiary support, that she had received independent legal advice, and that she had failed to fully disclose her assets, purposely misleading the court.

The respondent was entirely successful in defending the application and had made reasonable offers to settle which were rejected by the applicant.

Given the applicant's unreasonable conduct and the respondent's success, the court awarded full indemnity costs to the respondent in the amount of $15,582.69.