Michael A. Penny

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.

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 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.

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.

The moving party sought a non‑removal order preventing the custodial parent from travelling with the child to Dubai and also sought changes to the pickup and drop‑off arrangements for access.

The court declined to make a blanket prohibition or authorization regarding international travel because no specific travel plan was before the court and circumstances could change.

The existing order requiring travel notice remained in force, though the notice period for travel to Dubai was extended to 90 days due to concerns associated with a non‑Hague Convention destination.

The court varied the access exchange terms, requiring the parties to conduct weekend exchanges in Kingston to more fairly distribute travel burdens and facilitate the child's relationship with the moving parent.

The applicant brought a motion for interim child and spousal support, production of financial disclosure, and related relief.

The respondent repeatedly failed to comply with prior court orders requiring disclosure of personal and corporate financial records relevant to determining income for support purposes.

Relying on s. 19 of the Federal Child Support Guidelines, the court held that income may be imputed where a payor fails to provide required disclosure or where income may be diverted through a corporation.

Due to incomplete disclosure and evidence of substantial unexplained deposits into personal accounts, the court imputed income to the respondent for interim support purposes.

The court also ordered further production of corporate records, granted leave for questioning, issued a non‑depletion order under the Family Law Act, and awarded substantial indemnity costs.

The respondents brought a motion to strike portions of an affidavit filed by the applicant in an application seeking to quash a municipal by-law under the City of Toronto Act.

The court had previously struck portions of an earlier affidavit for containing irrelevant historical allegations and improper innuendo about prior municipal actions.

On the renewed motion, the respondents argued the revised affidavit continued to include irrelevant references to earlier by-laws and municipal initiatives.

The court held that most of the objectionable material had been sufficiently sanitized and could remain as factual background potentially relevant to the issues, including whether the impugned by-law conferred a prohibited bonus.

However, one paragraph expressing the deponent’s concerns about public funds used in 2000 was struck as irrelevant.

The moving party sought to vary a prior order requiring payment of child and spousal support, arguing a material change in circumstances due to loss of employment, reduced income, depression, and loss of a driver’s licence.

The court held that the moving party failed to establish a significant and sustained change in circumstances or demonstrate that his reduced income reflected his true earning capacity.

The medical evidence relied upon was inadequate to establish unemployability and did not meet the standards for expert opinion evidence.

The court maintained the previously imputed income under s. 19(1) of the Child Support Guidelines and declined to vary the support order or cancel arrears.

The motion to vary was dismissed, while the Ministry’s assignment of support arrears relating to social assistance payments was confirmed.