Lorne H. Wolfson

The Court of Appeal for Ontario dismissed a motion by Rajinder Singh Rathee to amend a previous appellate decision regarding the quantum of lump sum spousal support.

The court held that the alleged error was not a clerical or accidental slip within the meaning of Rule 59.06(1) of the Rules of Civil Procedure, but rather a substantive disagreement with the court’s reasoning.

The motion was dismissed and costs were awarded to Noelle Heen-Lune Rathee.

The Court of Appeal for Ontario heard an appeal concerning spousal support.

The husband appealed a Superior Court decision that significantly increased his lump sum spousal support obligation to the wife from an arbitration award.

The Court of Appeal found that both the appeal judge and the arbitrator erred in their application of the Spousal Support Advisory Guidelines (SSAGs).

The appeal judge failed to give deference to the arbitrator's findings and ignored relevant factors, while the arbitrator failed to adequately explain the departure from SSAGs.

The Court of Appeal substituted its own award, increasing the lump sum spousal support to $678,888 (from the arbitrator's $250,000, but less than the appeal judge's $1,893,603) and awarded the wife $100,000 in arbitration costs.

The husband brought a motion to correct the calculation of a spousal support award previously set aside and substituted by the court on appeal.

He argued for a "netting-down" of the retroactive sum to account for after-tax costs and benefits, or to address an undecided issue.

The court dismissed the motion, finding that present-value calculations were inappropriate for arrears and that the income tax implications did not warrant a reduction.

The judge emphasized that the husband had deliberately avoided paying spousal support and should not benefit from tax advantages he forewent, citing public policy against rewarding such conduct.

The appellant sought to set aside a separation agreement executed four years earlier under section 56(4) of the Family Law Act on the basis that the respondent failed to disclose significant assets.

The trial judge found that while the respondent had indeed failed to disclose certain family business interests, shareholder loan payments, and capital income from share sales, these assets were not "significant" within the meaning of section 56(4) in the context of the settlement negotiations.

The trial judge determined that the non-disclosed assets had no bearing on equalization and were irrelevant to support, as the parties had agreed to support based on an income figure substantially higher than the respondent's actual income at the time of separation.

The Court of Appeal upheld the dismissal of the application.

This trial decision addresses the equalization of net family property, spousal support, and s. 7 child support expenses following a 20-year marriage.

Key disputes included the attribution of diamond rings and a joint bank account, the existence of a debt to the applicant's sister for a California property, the respondent's personal debts, and the valuation of a Honda and RRSPs at the date of marriage.

The court imputed income for both parties for support purposes and denied the respondent's request for a right of first refusal on a jointly-owned property.

The respondent brought a motion to stay a family law proceeding, arguing that minutes of settlement constituted a binding arbitration agreement for child and spousal support issues.

The applicant opposed the motion, asserting that the minutes of settlement did not meet the mandatory formal requirements for family arbitration agreements under O. Reg. 134/07 of the Arbitration Act, 1991.

The court dismissed the motion, finding that the minutes of settlement lacked the necessary formalities and that the parties' subsequent conduct indicated an understanding that a secondary, formal arbitration agreement was a condition precedent.

The applicant mother brought a motion for financial disclosure from the respondent father dating back to 1995 in relation to a claim for retroactive child support.

The respondent brought a cross-motion to sever the issue of entitlement for the years 1995-2007, arguing that a trial should be held on entitlement before disclosure is ordered.

The court dismissed the cross-motion for severance, finding that financial disclosure is necessary to assess whether the respondent engaged in blameworthy conduct under the D.B.S. framework.

The court granted the applicant's motion for disclosure, ordering the respondent to produce financial information from 1995 onwards.