Michael Zalev

The respondent husband sought leave to appeal an interlocutory procedural order relating to filing, questioning, and refusals to answer undertakings in a family proceeding.

The Divisional Court considered the criteria for granting leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure.

The court held that the requirements for leave were not satisfied because the prior consent order cited did not constitute a conflicting decision and the proposed appeal did not raise issues of public importance.

The matter was characterized as a procedural dispute between family litigants.

Leave to appeal was therefore denied and the motion dismissed.

Following a successful appeal where the matter was remitted for trial, the Court of Appeal considered the parties' costs submissions.

The court applied the presumption that a successful appellant is entitled to costs and awarded the appellant $10,000 inclusive of disbursements and taxes.

The appellant father appealed a decision dismissing his motion to change child support for his adult disabled son, who had begun receiving Ontario Disability Support Program (ODSP) benefits.

The trial judge and Divisional Court held that the presumptive table approach under the Federal Child Support Guidelines was not inappropriate.

The Court of Appeal allowed the appeal, finding that the receipt of ODSP benefits displaced the assumptions underlying the table approach, making it inappropriate.

The matter was remitted for trial to determine the appropriate amount of support under s. 3(2)(b) of the Guidelines on a more complete factual record.

Following an appeal where the appellant wife was successful, the parties agreed on consent to set aside the trial costs disposition.

The Court of Appeal ordered that the trial judge determine the costs of the proceedings below, as well as the costs of the appeal and cross-appeal, bearing in mind the appellant's success.

Following a lengthy marriage between two medical professionals, the parties proceeded to trial to resolve financial issues including equalization of net family property, spousal support, child support, and section 7 expenses.

The court determined that equalization under the Family Law Act was appropriate and rejected the applicant’s claim for an unequal division under s. 5(6), finding that equalization would not be unconscionable.

The court calculated an equalization payment and addressed numerous disputed property valuation issues, including notional disposition costs and treatment of premarital assets.

The court also found the applicant entitled to spousal support on both compensatory and needs-based grounds due to reduced earning capacity after assuming greater childcare responsibilities during the marriage.

Orders were made for ongoing spousal support, retroactive support adjustments, set‑off child support, allocation of section 7 expenses, life insurance to secure support obligations, and timelines for vacating the matrimonial home.

The parties separated and the central issue was the equalization of their jointly-owned physiotherapy clinic.

The application judge valued the business by averaging two competing expert figures and ordered the appellant to buy out the respondent's share.

The Court of Appeal allowed the appeal, holding that under the Family Law Act, a judge cannot order a buyout of jointly-owned property without consent; the property must be sold.

The court also found the valuation method flawed and ordered the business listed for sale at the respondent's expert's valuation figure, with an accounting to follow.

Following an appeal where the appellant succeeded in reducing the amount payable but failed to obtain a new trial or overturn the setting aside of a domestic contract, the court determined costs.

The respondent was deemed largely successful and awarded $25,000 in appeal costs.

The issue of trial costs, originally awarded on a substantial indemnity scale, was remitted to the trial judge for reconsideration in light of the appeal outcome.

On a family law appeal arising from marriage breakdown, the court upheld the refusal of an adjournment and rejected an allegation of reasonable apprehension of bias against the trial judge.

It also upheld the setting aside of a domestic contract under s. 56(4)(b) of the Family Law Act where the respondent did not understand the nature or consequences of the agreement and had no meaningful independent legal advice.

The court held that, although unjust enrichment was established, the trial judge erred by granting a proprietary constructive trust without first considering whether a monetary remedy would suffice under the Kerr framework.

The proper remedy was equalization under the Family Law Act, resulting in an equalization payment of $390,646.77 secured by a charge on the farm.

Retroactive child support from the date of separation was upheld, but interest on arrears was reduced from 10 per cent to 3 per cent, and the loan repayment order was set aside.

Following a 15‑day custody and access trial, the successful party sought $493,000 in costs on a partial indemnity basis to the date of a settlement offer and full indemnity thereafter.

The court analyzed success at trial, the parties’ settlement offers, litigation conduct, and reasonableness of the claimed fees under the Family Law Rules.

The court found the moving party clearly more successful and that his settlement offers were more closely aligned with the trial outcome than the opposing party’s offers.

However, the court reduced the recovery due to unreasonable conduct, including surreptitious recording of the opposing party during disputes involving the children.

Costs were fixed at $345,000 on a partial recovery basis and ordered payable within 90 days.

This was a costs endorsement following a family law appeal.

The court held that success on the appeal was divided and ordered that each party bear their own costs of the appeal.

The court further declined to interfere with the trial judge's costs award, finding it reasonable and noting that the result of the appeal would have only a modest monetary impact on the trial decision.

The appellant appealed the dismissal of his action against his former lawyer alleging solicitor’s negligence and breach of fiduciary duty, and also sought leave to appeal a substantial trial costs award.

The court held that the appellant had led no expert evidence on the standard of care, did not fall within recognized exceptions, failed to prove causation or damages, and did not establish any fiduciary breach.

The court further upheld the trial judge’s finding that the claim was discovered no later than February 9, 2006 and was therefore barred by the applicable limitation period when commenced on July 10, 2008.

The appeal was dismissed, leave to appeal costs was refused, and appeal costs were fixed at $28,000 on a partial indemnity basis.

The parties separated after a 36-year marriage during which they operated a dairy farm.

The application judge ordered a lump sum spousal support payment, refused to allow the husband to deduct future disposition costs from his net family property, found a milk quota transfer was not a gift, and ordered the in specie division of six jointly owned farm properties.

On appeal, the Court of Appeal held that the application judge erred in refusing the disposition costs deduction and in ordering the in specie division of the properties under the Family Law Act and Partition Act.

The properties were ordered to be sold.

The appeal regarding the milk quota and spousal support was dismissed.

A high-conflict custody trial concerning three teenage children where each parent alleged parental alienation by the other.

The applicant mother sought sole custody of all children and suspension of the father’s access pending therapeutic intervention.

The respondent father sought sole custody of two children and joint custody of the third.

The court accepted the assessor’s opinion that the case was a “mixed” alienation scenario involving problematic parenting behaviour by both parties rather than pure parental alienation by one parent.

Given the children’s ages, experiences with each parent, and entrenched conflict, the court declined to change residential custody as requested and instead structured a divided custody arrangement combined with extensive therapeutic intervention and detailed parenting orders designed to repair parent‑child and sibling relationships.

The appellant and the deceased entered into a separation agreement in which the deceased represented that the appellant was solely entitled to his pension survivor benefits.

The agreement also provided that if the deceased remarried, he would make all possible efforts to have his new spouse release her claims to his pension.

The deceased remarried and subsequently died before retiring.

The appellant brought an action claiming entitlement to the pre-retirement death benefit, arguing the separation agreement constituted an assignment under the Pension Benefits Standards Act, 1985.

The Court of Appeal dismissed the appeal, holding that the separation agreement did not amount to a clear and unequivocal assignment of the pre-retirement death benefit, particularly given the express recognition that a subsequent spouse might not release her rights.

During an ongoing family law trial, the applicant sought to call two witnesses in reply concerning a child's mental health events and communications that emerged from late-produced emails.

The court considered the principles governing reply evidence, including whether the evidence addressed new matters arising from the defence or whether it constituted impermissible splitting of a party’s case.

The court held that limited reply evidence from the child’s therapist was permissible regarding specific events in June–July 2011 and related emails that gained new significance during the defence case.

However, broader inquiries into the child’s ongoing mental health and alleged information‑withholding could have been addressed in the applicant’s case in chief and were therefore excluded.

The proposed testimony of the guidance counsellor was not proper reply evidence, and the applicant’s request to reopen her case in chief was denied.

During an ongoing family law trial, the respondent sought production of a therapist’s clinical file after the applicant decided not to call the therapist as a witness despite earlier representations that he would testify.

The parties had also exchanged mutual undertakings to produce doctors’ files.

The court found that the respondent had relied on the applicant’s repeated statements that the therapist would testify and that the file would be produced.

Drawing on principles from R. v. Jolivet regarding fairness when litigation strategy changes mid‑trial, the court concluded that withholding the file would create unfairness.

The applicant was ordered to obtain and produce the therapist’s file so the respondent could determine whether to call the therapist as a witness.

The Court of Appeal previously dismissed the appellant's appeal regarding child custody and the language of instruction, and requested written submissions on costs.

The appellant argued he was successful on the critical issue of the importance of the children's language of instruction, despite the appeal being dismissed due to the children having remained in French immersion for three additional years.

The respondent argued she was entirely successful and sought $25,000 in partial indemnity costs.

The court applied the usual rule that the successful party is entitled to costs, but reduced the respondent's award to $20,000 on a partial indemnity basis to reflect the appellant's partial success in demonstrating an error by the trial judge.

In a family law proceeding involving allegations of parental alienation, the court conducted a voir dire to determine the admissibility of proposed expert evidence from a developmental psychologist retained to provide a generic report on parental alienation theory.

Applying the admissibility framework from R. v. Mohan and the two‑stage analysis articulated in R. v. Abbey, the court considered necessity, reliability, and the balance between probative value and potential prejudice.

The court concluded that limited portions of the expert’s report explaining common alienating strategies and behaviours of alienated children would assist the trier of fact.

However, other portions—including general discussions of prevalence, cult analogies, therapeutic practices, and proposed remedial solutions—were excluded as lacking sufficient relevance or probative value.

The expert was also prohibited from answering fact‑based hypothetical questions because the retainer was limited to providing generic educational evidence rather than case‑specific opinions.

During a custody and access trial, the applicant brought a motion seeking to redact portions of a custody assessor’s notes, records, and report that referenced communications from a prior closed mediation.

The applicant argued that mediation privilege had not been clearly waived when she consented to the assessor obtaining information from the mediator.

The court found that the applicant knowingly signed a release permitting disclosure to the assessor and understood that information provided to the assessor could be disclosed in court under the assessor’s retainer terms.

The court further held that the applicant impliedly waived mediation privilege by later providing submissions discussing the mediation for the assessor’s consideration.

Given the parties’ consent and the potential prejudice to the integrity of the assessment if extensive redactions were allowed, the motion to redact was denied.

Following an appeal where the appellant was partially successful in reversing a significant portion of the trial judge's award, both parties sought partial indemnity costs.

The Court of Appeal determined that because neither party was wholly successful at either the trial or appellate level, the appropriate disposition was no order as to costs for the appeal, the motion, or the trial.