Michael J. Polisuk

This family law trial addressed complex financial issues between former spouses after a protracted separation, including equalization of net family property, post-valuation date adjustments, and occupation rent for the matrimonial home.

The court assessed the credibility of both parties, determined the value of various assets and liabilities, and ruled on the deductibility of the husband's alleged pre-marriage assets and the excludability of the wife's gifted shares.

The decision also considered the wife's conduct regarding the delayed sale of the matrimonial home and the husband's claim for occupation rent, ultimately ordering a net payment from the husband to the wife, alongside a significant occupation rent payment from the wife to the husband.

The paternal grandparents sought court-ordered contact with their two grandchildren, E. (13.5) and L. (10), and reconciliation counseling.

The parents opposed the extent of contact and the counseling.

The court found a positive pre-existing relationship with E. was imperiled by both parties' actions, but the parents did not act arbitrarily in limiting contact with E. For L., no positive pre-existing relationship existed, but the parents' actions in limiting contact were deemed arbitrary.

The court ordered monthly contact for both children for a minimum of three hours, with additional contact options, and dismissed the request for reconciliation counseling, emphasizing that such orders are made sparingly and parental autonomy is key.

The appellant father appealed an order from an uncontested trial where his pleadings were struck for non-disclosure in a child support motion to change.

The respondent mother brought a motion to quash the appeal, arguing the father lacked standing.

The Court of Appeal granted the motion to quash, dismissing the appeal.

The court affirmed that parties whose pleadings are struck generally lack standing to appeal an uncontested trial order, finding no exceptional circumstances.

It clarified that evolving Section 7 expenses do not constitute new heads of relief requiring amended pleadings, distinguishing the case from Freedman v. Freedman.

The court emphasized the importance of disclosure in child support matters.

The mother sought an urgent, without-notice restraining order against the step-father/father to protect herself and three children due to ongoing family violence and safety concerns.

The motion, initially under the Child, Youth and Family Services Act (CYFSA), was amended to include relief under the Children’s Law Reform Act (CLRA) and Family Law Act (FLA).

The court found reasonable grounds for fear for safety based on evidence of physical and verbal abuse.

A temporary restraining order was granted on a without-notice basis, with the mother directed to forthwith commence a CLRA application.

The court emphasized the paramount purpose of child protection in granting the order despite CYFSA's notice requirements.

The applicant sought to vary a 2010 final order for child support to account for the children's university education.

The respondent, with a history of non-disclosure and abuse of process, had his pleadings struck, leading to an uncontested hearing.

The court imputed income to the respondent and ordered payment of s. 7 expenses and substantial arrears.

The decision also critically examined a recent interim order granted to the respondent, emphasizing the need for a holistic approach to litigation and a stringent test for interim variations of final orders.

The child protection agency brought a motion regarding the care of two young children during an adjournment period.

The agency initially sought a supervision order placing the children with the father, but the court found that a supervision order would not adequately protect the children due to recent breaches of safety plans, domestic violence, and substance abuse concerns.

The court ordered that the children be placed in the temporary care and custody of the agency on a without prejudice basis.

The father brought a motion to change a 2014 final order that gave the mother sole decision-making and primary residence, with his parenting time at her discretion.

The father had almost no contact with the child for six years.

The court found a material change in circumstances and concluded that the mother had engaged in parental alienation, actively undermining the child's relationship with the father and causing the child to fear him.

The court ordered joint decision-making and implemented a temporary, stepped parenting time schedule that transitions to week-about shared parenting, while declining to order police enforcement at this stage.

The applicant children's aid society brought a motion for summary judgment seeking an order that a 4.5-year-old child with autism spectrum disorder be placed in extended society care, with reduced access for the parents.

The parents opposed the motion, seeking to have the child placed in their care or to adjourn for updated parenting capacity assessments.

The court applied the test for summary judgment in child protection proceedings and found that there were genuine issues requiring a trial regarding the father's parenting plan and both parents' access.

The court noted that the existing parenting capacity assessments were outdated and that the COVID-19 pandemic had impacted the parents' ability to progress.

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

The respondent father sought leave to bring various motions to change a final order regarding child support and section 7 expenses, having previously been prohibited from bringing motions without leave.

The court denied leave, finding that the father had failed to comply with previous costs orders, had unilaterally reduced his child support payments, and was attempting to relitigate issues that had already been dismissed on an interim basis.

The father was ordered to pay costs of the case conference.

The respondent brought a motion to change to reduce interim child support and s. 7 expenses due to a change in employment.

The court dismissed the respondent's motion, finding he failed to prove a material change in circumstances or an urgent need for interim relief, largely due to incomplete financial disclosure and a history of non-compliance.

A minor variation was made to the final order, requiring child support for Victoria for four months a year when she resides with the applicant, instead of 12 months.

The appellant wife appealed an order directing the sale of the jointly owned matrimonial home prior to trial.

The respondent husband had brought a motion for the sale to access his equity.

The Divisional Court dismissed the appeal, finding that the motion judge correctly applied the law that a joint tenant has a prima facie right to partition and sale.

The wife failed to provide sufficient evidence that her potential equalization claims would be prejudiced by the sale, given the significant equity in the home.

The appellant father appealed from an order striking his pleadings in a motion to change child support.

The parties had previously settled all issues arising from their marriage breakdown, with the father's income deemed at $120,000 per year and agreeing to contribute $1,000 monthly toward section 7 expenses for five years.

After the five-year term ended, the father ceased payments.

The mother initiated a motion to change seeking continued section 7 contributions.

The father opposed and sought a refund of approximately $66,000.

The motion judge struck the father's pleadings after he failed to comply with undertakings to provide proof of the source of approximately $1,169,000 in deposits, despite being requested to do so on five occasions and receiving clear directions on compliance.

The appeal was dismissed.

The respondent husband brought a motion to remove the applicant wife's counsel of record due to a conflict of interest.

Prior to being retained by the wife, the wife's counsel had multiple discussions with the husband's counsel regarding the strategic use of confidential information related to the valuation of the wife's business interests.

Applying the test from MacDonald Estate v. Martin, the court found that confidential strategic information had been imparted and that a reasonably-informed member of the public would not be satisfied that no use of this information would occur.

The motion to remove counsel was granted.

The defendant was charged with voyeurism, mischief, and breach of a common law peace bond following an incident at a Dollarama store in Richmond Hill on February 24, 2017.

The complainant believed the defendant had placed his cell phone between her legs and taken a picture up her skirt.

The Crown sought to prove the offence as an attempt to commit voyeurism under section 162(1)(c) of the Criminal Code.

The court found that while the physical positioning of the parties suggested the defendant may have been contemplating such an activity, the totality of the evidence did not establish the essential elements of an attempt beyond a reasonable doubt.

No photograph was found on the defendant's phone, and the Crown could not prove the defendant had the necessary mens rea to commit the offence.

The defendant was acquitted of all charges.

The appellant and respondent appealed from a trial judge's order dealing with child support and spousal support.

The appellant sought to characterize a $75,000 advance as a payment on account of spousal support, while the respondent contended that the trial judge erred in calculating the length of cohabitation as 13 years instead of 16.5 years, which affected the duration of spousal support.

The Court of Appeal dismissed the appellant's appeal regarding the $75,000 payment and allowed the respondent's cross-appeal, finding that the period of cohabitation should be 16 years and 5 months, resulting in an increased duration of spousal support from 11 years to 14 years from the date of separation.

The appellant appealed a motion judge's decision to change a final custody order that had granted him sole custody of his two sons and required them to attend a reunification program.

The younger son had repeatedly run away and refused to live with the appellant or attend the program.

The Court of Appeal upheld the motion judge's finding that the son's extreme resistance constituted a material change in circumstances and that it was no longer in his best interests to enforce the custody order.

The court also dismissed the son's cross-appeal seeking a declaration that he had withdrawn from parental control, finding the motion judge's order that no person had custody or access rights over him was sufficient.

The applicant sought disclosure for claims of constructive trust, unjust enrichment, tracing, and spousal support.

The respondent moved for summary judgment to dismiss these claims based on limitation periods and to strike or stay the application due to unpaid costs.

The court dismissed the applicant's disclosure motion, granted the respondent's summary judgment motion, dismissing the property claims due to expired limitation periods and laches, and stayed the application until the applicant complies with all outstanding costs orders.

The Applicant Husband, successful in a bifurcated trial upholding a marriage contract and denying further spousal support, sought costs of $95,000.

The Respondent Wife opposed, arguing Rule 18 did not apply and the costs were excessive, citing her financial position.

The court found the Husband's offers to settle did not meet Rule 18 criteria due to time limits and conditions, but considered them under Rule 24.

The Husband's position was deemed more reasonable, and the Wife's litigation conduct, including unreasonable settlement positions and unsupported claims, was discouraged.

The court awarded the Husband $80,000 in costs, inclusive of HST and disbursements, noting the importance of upholding private agreements and discouraging attempts to set aside valid contracts.

Following the dismissal of the appellant's family law appeal regarding the sale of the matrimonial home, child support, spousal support, and section 7 expenses, the court received written submissions on costs.

The respondent, who was entirely successful on the appeal, was awarded costs in the amount of $2,500 inclusive of disbursements and HST.

The parties entered into a marriage contract shortly before their wedding.

Following a short and tumultuous marriage, the parties separated.

The wife sought to set aside the marriage contract under s. 56(4) of the Family Law Act, alleging lack of financial disclosure, unconscionability, undue influence, duress, and misrepresentation.

The court found the contract valid and binding, noting the wife had independent legal advice and understood the agreement.

The court also applied the Miglin framework and upheld the spousal support provisions in the contract.

The husband was awarded occupation rent for the wife's use of his Florida condominium, which offset his remaining spousal support obligations.