Michael Zalev

This appeal concerns a motion to change a custody and access order.

The trial judge rejected a proposed settlement negotiated by the parties during trial without providing reasons, then proceeded to hear the trial and rendered a decision maintaining the children's primary residence with the respondent in the Niagara region rather than allowing them to move to Ottawa with the appellant.

The majority upheld the trial judge's decision on the merits, finding that although the trial judge erred in failing to provide reasons for rejecting the settlement, the findings made after trial confirm the custody order was in the children's best interests.

The majority reduced the costs award from $40,000 to $30,000.

Justice Nordheimer dissented, arguing that the trial judge's knowledge of the settlement terms compromised his impartiality and that the settlement should have been approved.

The applicant mother (C.A.) brought a motion to strike the respondent father's (K.G.) motion to change a 2014 final court order.

K.G.'s motion sought to terminate spousal support, reduce child support, change primary residence of children, and set support arrears to zero.

C.A. alleged K.G. had a long-standing pattern of non-compliance with court orders and disclosure obligations, including significant support arrears and failure to maintain life insurance.

The court reviewed K.G.'s history of non-compliance, inconsistent financial disclosure, and evidence from his former spouse (H.W.) which contradicted his financial claims.

Applying Family Law Rule 1(8)(c) and appellate guidance, the court found exceptional circumstances justifying striking K.G.'s motion to change, emphasizing the fundamental duty of financial disclosure and the "real harm" caused by persistent non-compliance.

Alternative remedies were deemed insufficient given K.G.'s repeated failures.

In this matrimonial appeal, the husband challenged a motion judge's order allowing the wife to amend her notice of motion to request a set-off of costs and interest owed by the wife against accumulated spousal support and costs owed by the husband.

The motion judge set off $331,533.54 against $479,130.91, resulting in a net amount of $147,597.37 owing from the husband to the wife.

The husband argued that set-off was not available in law and usurped the jurisdiction of the Family Responsibility Office.

The Court of Appeal dismissed the appeal, finding that the amendment was appropriately allowed under the Family Law Rules and that set-off was available under section 111 of the Courts of Justice Act.

The moving party (father) sought costs of $669,000 following a successful motion to change child and spousal support.

The responding party (mother) had unsuccessfully sought to reopen numerous issues from a prior trial, alleging the moving party had significant unreported cash income.

The court found the responding party acted unreasonably, though not in bad faith, and that the moving party's offer to settle met the requirements of Rule 18(14).

Applying principles of proportionality and reasonableness, the court awarded the moving party $500,000 in costs, declining to order full recovery or to make the costs enforceable as support.

This endorsement addresses a motion brought by the applicant, Delia Joan Berta, seeking to compel further financial disclosure from the respondent, Raymond Louis Berta, in the context of his motion to change a final spousal support order.

The court ordered the respondent to produce various financial documents, including bank statements, credit card statements, line of credit statements, loan applications and rejection notices, corporate minute books for specific entities, and proof of car loan payoff.

However, the court declined to order further disclosure related to the respondent's expert witness, finding no reasonable grounds to suspect interference with the expert's independence, as per the test in Moore v. Getahun.

The motion was allowed in part, with no costs ordered due to divided success.

The parties, both physicians, engaged in highly conflicted litigation over child and spousal support following their divorce.

The father brought a motion to change child support as the children commenced university, and the mother sought to increase spousal support and impute significant unreported cash income to the father.

The court rejected the mother's expert evidence on imputing income due to bias and errors, preferring the father's expert.

The court established a framework for child support while the children attend university, ordered the father to pay minor arrears for table and s. 7 expenses, and dismissed the mother's claim for increased spousal support, finding no material change in circumstances.

The appellant appealed the dismissal of her motion to change spousal support.

The parties had been married for 21 years and reached a consent order in 2012 providing for $12,000 per month in spousal support plus 27% of incentive employment income.

The motion judge dismissed the motion to change, finding that while the respondent's income had increased, no additional compensatory support was warranted.

The appellant argued the motion judge misunderstood the principles of compensatory support under Moge v. Moge.

The Court of Appeal upheld the dismissal, finding no legal error, error in principle, or significant misapprehension of evidence.

In supplementary reasons following an appeal regarding property ownership, the Court of Appeal addressed outstanding financial issues between former spouses.

The court ordered the respondent to reimburse the appellant for mortgage and property tax payments she made on his half-interest in a jointly owned property, finding he would otherwise be unjustly enriched.

The court also awarded the appellant additional occupation rent for the post-trial period.

Given divided success on the main appeal issues, the court ordered the parties to bear their own costs for both the trial and the appeal.

Appeal from trial judgment in matrimonial proceedings concerning ownership of property.

The trial judge found that the appellant's 50% interest in Knapton Farms Ltd. (a corporation holding farm property) and 100% interest in lot 8 (adjoining land) were beneficially owned by the respondent through resulting trust.

The Court of Appeal allowed the appeal in part, finding that the trial judge correctly applied resulting trust principles to the Knapton shares but erred regarding lot 8.

The court held that the initial 1994 transfer of lot 8 to the parties as joint owners created a presumption of joint beneficial ownership under the Family Law Act, which the respondent failed to rebut.

However, the court upheld the resulting trust finding regarding the 1996 transfer of the respondent's half-interest to the appellant.

The court also corrected the valuation of farm real estate and addressed equalization, occupation rent, and pre-judgment interest issues.

On appeal from a trial decision in a family law matter involving equalization, spousal support, and costs following a 27-year marriage.

The trial judge had ordered an equalization payment, spousal support at the low end of the Spousal Support Advisory Guidelines, and full indemnity costs against the wife.

The Court of Appeal affirmed the equalization payment but found errors in the spousal support calculation and costs award, returning both issues to the trial judge for reconsideration.

On the second appeal, the Court of Appeal corrected the wife's income calculation to account for tax implications and eliminated double-counting, resulting in a higher spousal support award.

The costs award was upheld as reasonable given the wife's conduct.

The appellant appealed the judgment of the Superior Court of Justice.

The Court of Appeal agreed with the reasons of the lower court judge, found the appeal had no merit, and dismissed it with costs fixed at $5,000.

Following the dismissal of a motion to remove the respondent's counsel in a family law proceeding, the respondent sought costs of $88,729.26 on a substantial indemnity basis.

The moving parties argued the quantum was unreasonable and sought to have costs fixed at $30,000 payable in the cause.

The court found the respondent's counsel's hours and rates to be somewhat excessive compared to the moving parties' counsel, but acknowledged the importance of the motion.

The court fixed costs at $50,000, payable forthwith, rejecting the moving parties' argument that payment should be deferred until the equalization payment was determined.

The wife and her boyfriend brought a motion to remove the husband's lawyer due to an alleged conflict of interest.

The boyfriend had a brief consultation with the lawyer for his own matrimonial matter, and the husband's answer in the current litigation alleged an affair between the wife and boyfriend and extravagant spending.

The moving parties claimed the lawyer breached duties of confidence, loyalty, and candour, and faced a potential conflict in cross-examining the boyfriend as a witness.

The court dismissed the motion, finding no confidential information was disclosed, the relationship between the wife and boyfriend was not confidential, and the two matrimonial litigations were not sufficiently related to create a presumption of conflict.

The court also found no breach of a limited duty of loyalty or candour, and no impediment to cross-examination.

The appellant appealed the trial decisions regarding custody, equalization of net family property, spousal support, and costs following a high-conflict separation.

The Court of Appeal dismissed the custody appeal as moot since the children were now adults.

The court upheld the trial judge's calculation of net family property, finding no error in excluding the pre-marriage mortgage on the matrimonial home or in denying an unequal division.

The spousal support award of $10,000 per month and the discretionary costs awards were also affirmed, with the court emphasizing deference to trial judges in family law matters.

Following a judgment allowing appeals and cross-appeals in part, the parties were unable to agree on costs.

The Court of Appeal awarded costs on a partial indemnity scale, ordering Charles Sr. to pay Diana $50,000, Charles Jr. to pay Diana $15,000, Lisa to pay Charles Jr. $15,000, and Ford to pay Lisa $15,000.

All additional requests for costs were dismissed.

The appellant appealed an order setting aside a 2005 amending agreement to a separation agreement, declaring the respondent the sole owner of a property, and ordering prospective spousal support.

The respondent cross-appealed on issues including retroactive support, pre-judgment interest, and costs.

The Court of Appeal upheld the applications judge's decision to set aside the agreement due to the appellant's significant financial non-disclosure and unconscionability.

The appeal was dismissed in its entirety.

The cross-appeal was allowed only to award pre-judgment interest on the retroactive child and spousal support order.

The appellant was previously granted an extension of time to perfect his appeal on the condition that he pay $29,275 in outstanding costs to the respondent.

The order provided that if payment was not made within 60 days, the respondent could move to dismiss the appeal.

The appellant failed to make the payment, arguing that an agreement with the Family Responsibility Office or the appeal itself operated as a stay.

The Court of Appeal rejected these arguments and dismissed the appeal, awarding $2,000 in costs to the respondent.

Following an earlier endorsement deciding a family law motion, the court addressed costs.

The successful party sought full recovery costs of $20,800, while the opposing party argued that no costs should be awarded or that they should be reduced.

The court dismissed a request for leave to file reply submissions on costs and held that settlement discussions during mediation were protected by privilege and should not be referenced.

Finding that the unsuccessful party had behaved unreasonably in the underlying proceedings, the court ordered costs above partial indemnity but reduced the requested amount as disproportionate.

Costs of $10,000 were awarded, payable by set-off against any amounts owing or otherwise at final judgment or settlement.

The respondent father brought a motion seeking a stay of an Ontario family law proceeding on the basis that Ontario lacked jurisdiction over divorce and custody issues.

The court examined jurisdiction under s. 3(1) of the Divorce Act and ss. 22, 23, 25, and 40 of the Children’s Law Reform Act.

The moving party argued that the child’s habitual residence and the parties’ last common habitual residence were in British Columbia and that the other province was the more appropriate forum.

The court found the applicant had not established ordinary residence in Ontario for the required period and that the statutory criteria for exercising jurisdiction under the CLRA were not satisfied.

The proceeding was stayed and the child was ordered returned to British Columbia.

The appellant husband appealed a trial judgment that awarded his bankrupt wife an equalization payment, lump sum spousal support, and costs.

The wife's former lawyers also appealed an order requiring the assessment of their accounts and a personal costs award against them.

The Court of Appeal allowed the appeal in part, setting aside the equalization payment because the wife lacked capacity to assert the claim after her bankruptcy, and setting aside the assessment of the lawyers' accounts.

However, the Court upheld the lump sum spousal support award and the costs awards, including the personal costs award against the wife's former lawyer for acting in bad faith and running up costs without reasonable cause.