Michael A. Penny

The applicant and respondent separated after a 20-year marriage.

The court determined the validity of a marriage contract that excluded the respondent's interest in a family trust, finding it valid and enforceable.

The court also addressed the tracing of trust funds into the matrimonial home, finding the respondent entitled to exclude a portion of the home's value.

The court ordered a set-off of child support obligations due to a shared custody arrangement, and awarded the applicant a lump sum of $432,000 for spousal support.

The respondent's third-party claims against a family friend for invasion of privacy and interference with parental access were dismissed.

The court addressed costs following a motion to set aside a purported ex parte default judgment that bore a forged judicial signature.

The court found that the plaintiffs had fabricated the judgment by copying and pasting the judge’s signature and had circulated the fake order to opposing parties and regulatory bodies as if it were a valid court judgment.

The court concluded that the conduct constituted a fraudulent and scurrilous attack on the administration of justice and amounted to reprehensible, scandalous, and outrageous behaviour.

Applying the principles governing full indemnity costs, the court held that the defendants were entitled to full indemnity costs as a form of chastisement and deterrence.

The plaintiffs were also barred from taking further steps in the proceeding until the costs were paid in full.

The applicant brought a motion seeking child support arrears, arguing that the respondent's 'excess' housing costs incurred while working in the U.K. should not be deducted from his income.

The applicant alleged that the respondent concealed the true amount of these costs during the negotiation of a 2008 consent order.

The court found that the respondent had disclosed the nature of the housing arrangement and that the applicant failed to inquire further about the specific amounts.

Applying the factors for setting aside an agreement for non-disclosure, the court held that there was no concealment or misrepresentation.

The court declined to set aside the 2008 consent order and allowed the housing cost deductions.

The court also declined to rule prematurely on the deductibility of the respondent's ongoing wrongful dismissal legal fees.

The appellant father appealed a decision ordering ongoing and retroactive child support for an adult child with severe disabilities.

The appellate court upheld the finding that the child qualified for support under s. 31 of the Family Law Act because her participation in an adapted educational program constituted full-time education in light of her medical limitations.

The court also upheld the retroactive support award based on the father’s blameworthy conduct in failing to disclose income increases, consistent with the principles in DBS v. SRG.

However, the court held that the impact of the adult child’s Ontario Disability Support Program benefits on the quantum of support had not been properly analyzed and required further evidentiary consideration.

That issue was remitted to the Ontario Court of Justice for determination while the remainder of the appeal was dismissed.

Parents appealed a summary judgment order making their children Crown wards without access in a child protection proceeding.

The appeal challenged the motion judge’s conclusion that there were no genuine issues requiring a trial regarding whether Crown wardship was the least disruptive alternative in the children’s best interests under the Child and Family Services Act.

The court held that the evidentiary record revealed no material factual disputes, but rather disagreements about the interpretation of undisputed facts concerning the parents’ commitment and capacity to parent.

Given the statutory time limits on society wardship and the children’s need for permanence and stability, summary judgment was appropriate.

The appeal from the denial of post‑Crown wardship access was also dismissed because the parents failed to adduce evidence satisfying the statutory test requiring proof that access would be beneficial and would not impair adoption prospects.

The applicant sought an order under the Hague Convention for the return of three children to Australia, alleging they were wrongfully retained in Ontario by the respondent.

The court examined habitual residence, consent, the one-year limitation under Article 12, and the grave risk of harm defence under Article 13(b).

It found that the family had a settled intention to reside in Australia and that the children's habitual residence remained Australia despite a temporary trip to Canada.

The respondent’s retention of the children after commencing custody proceedings in Ontario constituted wrongful detention, and no grave risk of harm was established.

The court ordered the children returned to Australia.

The applicant wife sought an adjournment of a family law trial scheduled to commence in October 2012.

The litigation had been ongoing since 2005, with the trial previously adjourned.

The applicant argued an adjournment was necessary due to a recent document disclosure request, her new employment, and the need for time to prepare after her counsel withdrew following an unsuccessful motion for interim costs.

The court dismissed the motion, finding the disclosure request tactical, the employment issue self-created, and the withdrawal of counsel foreseeable.

The court held that granting an adjournment would cause significant non-compensable prejudice to the respondent and undermine the administration of justice.

The applicant brought a motion to terminate or reduce his spousal support obligations, arguing a material change in circumstances following his involuntary retirement and the depletion of his assets.

The court found that the applicant's $4.5 million severance payment should be treated as income replacement for four years, delaying the material change to January 1, 2012.

The court imputed income to both parties based on their capital assets and reduced the applicant's spousal support obligation to $5,099 per month.

The court also ordered the applicant to pay COLA arrears on an after-tax basis, eliminated his life insurance obligation, but maintained his obligation to provide health benefits.

In a family law proceeding, the applicant alleged the respondent forged her signature to obtain mortgages on the matrimonial home and cottage, placing the properties at risk of enforcement by a bank.

The court addressed motions concerning amendment of the application, the involvement of the lender, and the respondent’s ability to bring further motions while in contempt of prior court orders.

The court permitted the mortgage validity dispute to proceed through a civil action with the issue of the mortgages’ validity determined as a preliminary issue before the family court under the Rules of Civil Procedure.

Because the respondent had failed to comply with multiple disclosure, support, and cost orders and had not met conditions imposed in a contempt order, his motion to vary support was struck.

The respondent was given a final opportunity to purge contempt before the applicant could move to strike his answer.

The applicant brought a motion for interim child and spousal support, contribution to section 7 expenses, and a non-dissipation order.

The court found a significant disparity in the evidence regarding the respondent's income and imputed his income at $300,000 for interim purposes.

The respondent was ordered to pay interim child support of $2,373 per month, interim spousal support of $8,894 per month, and outstanding section 7 expenses for private school tuition and orthodontistry.

The court also granted a non-dissipation order prohibiting the respondent from disposing of properties and requiring him to preserve assets.

A condominium corporation brought an application under s. 134 of the Condominium Act, 1998 seeking compliance orders, a permanent injunction, removal of a director, and a forced sale of a unit due to repeated assaults, threats, and harassment by a unit owner.

The court found that the respondent’s conduct constituted multiple physical assaults, threats, and intimidation that violated s. 117 of the Act and the condominium’s declaration and rules by disturbing the quiet enjoyment and safety of other residents.

The court rejected procedural objections concerning notice under s. 23 of the Act and authorization of counsel, holding the proceeding was properly constituted as a compliance application.

However, the court declined to remove the respondent from the board or order a forced sale, finding those remedies inappropriate at this stage.

A restraining order was issued requiring the respondent to keep the peace, cease abusive conduct, and stay a specified distance from certain individuals.

In a family law proceeding involving divorce, custody, support, and equalization claims, the parties brought competing motions concerning the preservation and management of significant Ontario real estate assets pending trial.

The respondent sought authority to access trust funds and manage or sell jointly held properties to complete pending real estate transactions, while the applicant sought an order compelling payment of mortgage arrears, taxes, and condominium fees to prevent dissipation of assets.

The court held that the respondent failed to provide admissible and sufficient evidence to justify the extraordinary relief requested, including reliance on inadmissible hearsay evidence.

The court reaffirmed and continued an earlier non‑dissipation order and found that the respondent bore responsibility for maintaining the parties’ Ontario properties.

The respondent’s motion was dismissed and the applicant’s motion was granted in part, requiring payment of arrears and ongoing property expenses.

On a motion for interim spousal support following a 24‑year marriage, the court considered how to determine income where the payor spouse’s earnings fluctuated significantly due to cyclical real estate development projects.

The applicant argued that support should be based on a multi‑year average exceeding $2 million annually, while the respondent claimed current income of approximately $214,000.

The court rejected both extremes, finding the unusually high income in certain years was anomalous but also concluding the claimed post‑separation income decline was not adequately supported.

Considering historical earnings patterns, capital gains history, and the respondent’s own spending levels, the court imputed income in the range of $700,000–$800,000 for interim purposes.

Interim spousal support was fixed at $25,000 per month and made retroactive to January 1, 2012.

The applicant brought a motion for the release of $101,290 held in trust from the sale of properties vested in her to secure unpaid child support and equalization payments.

The respondent opposed the release, arguing the applicant was in breach of prior orders and liable for security for costs.

The court granted the release of funds, finding the applicant had a strong prima facie case for fraudulent conveyance and that her claim to the funds outweighed the respondent's potential claim for security for costs.

The court dismissed the applicant's requests to vary prior procedural orders and directed the parties to attend a settlement conference.

The applicant mother sought sole custody and permission to relocate to Rome, Italy, with the parties' two children.

The parties were not separated but agreed to have the mobility issue determined first.

The court applied the Gordon v. Goertz framework, finding that the mother was the primary caregiver and that her professional and financial prospects, as well as her emotional well-being, would be significantly enhanced in Italy.

The court concluded that the benefits of the relocation outweighed the risks and disruptions, and granted the mother's application to relocate with the children.

A school board sought court approval of a proposed methodology to distribute approximately $1.7 million received following the windup of a group insurance trust.

The plan allocated a portion to future benefit premium reserves and distributed the remainder to non‑union employees enrolled in the insurance policies as of June 30, 2006, using a banding system based on years of participation.

An objector representing former employees argued that excluding individuals who ceased enrollment before that date was unreasonable because they had contributed premiums to the trust.

The court held that the board had broad discretion under the court‑approved trust windup terms and that basing distribution on enrollment as of June 30, 2006 was rational because that same metric determined the board’s share of the surplus.

The court also found it reasonable to consider administrative costs and data limitations in designing the methodology.

The proposed distribution methodology was approved.

The applicant and her sister, who co-owned the matrimonial home, sought an order to distribute the net proceeds of its sale.

The respondent husband, who had refused to consent to the sale, sought a Mareva injunction to freeze the proceeds, alleging his equalization claim would be defeated.

The court authorized the sale under s. 23(b) of the Family Law Act, dispensing with the respondent's consent.

The court dismissed the respondent's motion for a Mareva injunction, finding no real risk of asset dissipation, and ordered the proceeds distributed with one-third held in trust as security for the respondent's potential interest.

The applicant brought a motion under Part V of the Family Responsibility and Support Arrears Enforcement Act, 1996 seeking an order preventing the Director of the Family Responsibility Office from suspending his driver's licence due to unpaid child support.

The applicant argued financial hardship, unemployment, and the need for a licence for employment and potential medical emergencies involving his child.

The court found that the issues relating to income, employment, and ability to pay had already been determined in a prior trial and that no motion to vary or appeal had been pursued.

The court held that the applicant failed to demonstrate any material change in circumstances and characterized his evidence as disingenuous given the substantial arrears and lack of voluntary payments.

The motion was dismissed and costs were awarded against the applicant.

The applicant mother, who had sole custody of the child, sought to relocate to New Jersey to live with her new husband.

The respondent father opposed the move and sought custody.

The court applied the Gordon v. Goertz framework and found that the move was in the child's best interests, noting the mother's role as primary caregiver and the bona fide nature of the relocation.

The court permitted the move, varied the access schedule to provide the father with less frequent but longer visits, and ordered the father to pay child support arrears and ongoing support without imputing income to the mother for her temporary leave of absence.

A payor spouse brought a motion to vary a spousal support order following a review clause in a prior consent order.

The responding spouse sought increased spousal support and payment of alleged child support arrears, arguing that additional support was required while completing medical specialty training.

The court found the prior order contemplated four years of support to allow the responding spouse to complete training and held that the opportunity had not been pursued during that period.

While recognizing the difficulty of balancing childcare with residency demands, the court concluded it would undermine the original agreement to restart the full support period.

The court ordered limited further support equivalent to two academic years, contingent on enrollment in a specialty program, and dismissed the claim for child support arrears as contrary to an arbitration clause in the prior order.