Separation agreement

The appellant appealed an order setting aside a separation agreement and fixing the date of separation as July 31, 2018.

The application judge set aside the agreement under s. 56(4) of the Family Law Act because the appellant failed to disclose a pending $4,000,000 investment in his company.

The Court of Appeal found no error in the application judge's conclusion that the non-disclosure warranted setting aside the agreement on fairness grounds.

The Court also upheld the application judge's factual determination of the separation date, finding it was supported by the evidence of the parties' ongoing interactions.

The appeal was dismissed.

The appellant appealed a summary judgment order and a trial decision upholding a separation agreement.

The motion judge had found the agreement was signed but directed a trial on whether an escrow condition requiring corporate counsel's approval was met.

The trial judge found the appellant waived the condition by her conduct.

The Court of Appeal dismissed the appeal, finding the appellant was out of time to appeal the motion judge's order and that the trial judge made no palpable and overriding error in finding waiver by conduct.

The appellant father appealed a motion judge's orders regarding child support, arrears, and parenting time.

The parties had a separation agreement, but the mother sought to enforce its terms after a child changed residence to live with her full-time.

The Court of Appeal upheld the motion judge's calculation of child support and arrears, finding no error in applying the Guidelines.

However, the Court found the motion judge erred by issuing a final order for parenting time when he had indicated during the hearing it would be an interim order, thereby denying procedural fairness.

The appeal was allowed in part to make the parenting time order interim and to slightly reduce the costs awarded to the mother.

The plaintiff, a creditor of the defendant's bankrupt former spouse, brought a motion to set aside the bankrupt's release of his interest in the matrimonial home.

The bankrupt had released his interest in the home to the defendant in a separation agreement shortly before declaring bankruptcy.

The court held that the bankrupt's right to claim possession of the matrimonial home was personal in nature and not an asset available for distribution to creditors under the Bankruptcy and Insolvency Act.

The motion was dismissed.

The court issued an endorsement to clarify a previous order enforcing signed Minutes of Settlement between the parties.

The parties had disagreed on the terms of the formal order and attempted to insert newly negotiated terms regarding their separation agreement into the draft order.

The court rejected these additions, noting that the formal order had already been settled in the previous endorsement.

The court directed the respondent's counsel to submit the original draft order with only the specific amendments previously ordered, and clarified a prior costs award.

The parties separated after a 19-year marriage.

The applicant sought to enforce a separation agreement that resolved property issues and waived spousal support.

The respondent sought to set aside the agreement, alleging duress and lack of financial disclosure, particularly regarding the applicant's pension and her own foreign properties.

The court upheld the separation agreement regarding property, finding no duress or material non-disclosure.

However, applying the Miglin framework, the court set aside the spousal support waiver, finding it did not meet the objectives of the Divorce Act given the respondent's economic disadvantage and hardship.

The court imputed income to the respondent, calculated her child support obligations, and ordered the applicant to pay net spousal support of $787.00 per month.

The applicant brought a motion to change the spousal and child support provisions of a 2012 consent order that incorporated a separation agreement.

She argued that the respondent's receipt of a retroactive lump sum payment following a firefighter arbitration constituted a material change in circumstances.

The court dismissed the motion, finding no legal basis to set aside the agreement and holding that the possibility of a retroactive wage increase was known or ought to have been known when the agreement was signed, thus failing to meet the threshold for a material change.

The respondent husband brought a motion for summary judgment to dismiss the applicant wife's claims to set aside their separation agreement.

The wife alleged that the husband failed to provide adequate financial disclosure regarding his business interests and income, and that she signed the agreement under duress.

Applying the framework from Hryniak and the amended Family Law Rule 16, the court found that there were genuine issues requiring a trial regarding both the adequacy of the husband's financial disclosure and the wife's allegations of duress.

The motion for summary judgment was dismissed, and the matter was directed to proceed to trial.

The applicant sought to set aside a separation agreement and claimed retroactive and prospective spousal support under the Family Law Act and the Divorce Act.

She alleged the respondent failed to disclose material assets, the support was inadequate, and she was vulnerable when signing.

The court found the agreement was negotiated with independent legal advice, full financial disclosure was made, and there was no unconscionability or duress.

Applying the Miglin analysis, the court held the agreement met the objectives of the Divorce Act and the applicant failed to demonstrate an entitlement to further support.

The application was dismissed.

Following the first stage of a bifurcated trial where the applicant successfully had a separation agreement set aside, the court determined the issue of costs.

The applicant sought $60,000, while the respondent argued for a partial indemnity award of $11,000.

The court found the applicant was presumptively entitled to costs and his counsel's rates were reasonable.

However, the court limited the award to fees and disbursements connected to the first stage of the trial and noted the applicant's offer to settle did not strictly comply with the seven-day rule under subrule 18(14).

The court awarded the applicant $22,000 in costs.

The applicant wife brought a motion for interim spousal support and an order directing the respondent husband to return to full-time employment and not retire during the course of the lawsuit.

The parties had previously signed a separation agreement resolving all issues, which was filed with the court.

The court treated the motion as an interim variation of a final spousal support order.

The court dismissed the motion, finding that the applicant failed to demonstrate urgency, hardship, or that the continuation of the existing support order was incongruous and absurd.

The court also found no merit in ordering the respondent not to retire, noting that imputation of income could be addressed at trial.

The applicant sought to terminate his spousal support obligations under a separation agreement following his voluntary early retirement and subsequent reduction in income.

The court found that the applicant's retirement was a reasonable decision and not made in bad faith to avoid support obligations, constituting a material change in circumstances.

To prevent financial hardship to the respondent and promote self-sufficiency, the court ordered a transitional reduction of spousal support to $750 per month for one year, followed by a reduction to $1 annually thereafter.

The applicant sought the court's direction on whether she properly exercised her right under a separation and trust agreement to purchase the trust's 50% interest in the matrimonial home.

The applicant relied on an appraisal valuing the home at $700,000, while the property subsequently sold to a developer for $1.35 million.

The court ruled in favour of the respondent trustee, finding that the actual sale price was the best indicator of fair market value and that the trustee acted properly to maximize the trust's interest.

The applicant sought child support, including section 7 expenses, for two special needs children.

One child resided full-time in a group home, while the other resided with the applicant.

The court found that the parties' 2006 Separation Agreement contained 'special provisions' that benefited the children, allowing a deviation from the Child Support Guidelines.

The respondent was ordered to pay $600 monthly and 50% of section 7 expenses as per the agreement.

The court declined to order contribution for stem cell treatments outside Canada, finding them medically unsupported and financially unreasonable for the parties.

The respondent's claim for property sale proceeds was dismissed as statute-barred.

The parties brought cross-motions to change support obligations set out in their 2003 Separation Agreement.

The respondent sought to terminate spousal support after losing his job, while the applicant sought retroactive child support and increased spousal support.

The court found a material change in circumstances due to the respondent's unemployment and the applicant's new employment.

The court terminated spousal support immediately and dismissed the applicant's claims for retroactive child and spousal support.

The plaintiffs, Nashaat and Taghreed Aly, claimed a partnership interest in a family grocery business, Nader Halal, operated by Adel Tohamy.

The court found a valid oral agreement from 2001 granting the Alys a 20% interest.

In a related family law application, Adel's former wife, Naiema, sought to set aside two separation agreements that released her claims to the family businesses and spousal support.

The court set aside both agreements under s. 56(4) of the Family Law Act due to Adel's deliberate failure to disclose significant assets, unconscionability, and duress.

The court also found the defendants engaged in spoliation of evidence by destroying financial records and ordered the appointment of a receiver over the businesses pending the damages phase of the trial.

The applicant husband sought to set aside six separation agreements made between 1999 and 2007, claiming he was coerced and controlled by the respondent wife.

He also sought spousal support and an equalization payment.

The court applied the Miglin framework and found that the applicant failed to provide sufficient evidence of vulnerability or that the agreements were inconsistent with the Divorce Act.

The court concluded the agreements fell within the range of normative outcomes and dismissed the application.

The applicant husband initiated a divorce but abandoned it after failing to prove child support arrangements.

The respondent wife filed an answer claiming retroactive child and spousal support, equalization, and a vesting order for the matrimonial home.

The husband was in default.

The court found the husband had hidden his income while working in the Middle East and imputed his income at $281,195.

The court set aside the spousal support release in the parties' separation agreement due to a fundamental flaw in negotiations and the husband's financial manipulation.

The court awarded retroactive child and spousal support totaling $156,873 and granted a vesting order transferring the husband's interest in the matrimonial home to the wife to satisfy the arrears.

The applicant mother brought a motion to change a final order to seek table child support for summer months and contribution to the child's university expenses.

She also sought equal division of the proceeds from the sale of a jointly owned home.

The respondent father argued he was the sole owner of the home based on a 2002 unwitnessed 'Divorce Agreement' and his mortgage payments.

The court found the agreement unenforceable under s. 55(1) of the Family Law Act and held the property was jointly owned.

The court ordered the net proceeds divided equally after crediting the father for lump sum mortgage payments.

The father was also ordered to pay summer table support and his proportionate share of the child's university expenses.

The moving party (former husband) brought a motion for summary judgment to dismiss the responding party's (former wife) application to set aside their separation agreement and claim spousal support and equalization of net family property.

The responding party alleged she signed the agreement under duress, without proper financial disclosure, and without independent legal advice.

The court applied the "full appreciation test" for summary judgment and the Miglin two-stage test for setting aside domestic contracts.

The court found no evidence of duress, noted the responding party had counsel but chose to sign without them, and concluded the agreement substantially complied with the Divorce Act.

The motion for summary judgment was granted and the application was dismissed.