Michael Zalev

The appellant father appealed a trial judge's order awarding retroactive child support, retroactive section 7 extraordinary expenses, sole custody to the respondent mother, and the transfer of a life insurance policy.

The Court of Appeal allowed the appeal, finding the trial judge erred in principle by failing to apply the criteria under section 7 of the Child Support Guidelines and the D.B.S. factors for retroactive support.

The court also held it was an error to make unrequested substantive orders regarding custody and life insurance.

To save time and expense, the Court of Appeal substituted its own order fixing arrears and setting future section 7 expense obligations.

Following an appeal, the court issued a costs endorsement.

The parties agreed on the quantum of costs, and the court ordered the appellant to pay the respondent costs of the appeal in the agreed amount of $12,500, inclusive of disbursements and taxes.

The appellant father appealed a trial decision granting sole custody of the parties' three children to the respondent mother.

The father argued the trial judge erred by failing to consider ordering the children to attend a homogeneous French-language school as a condition of custody.

The Court of Appeal found that the trial judge did err in failing to consider such a condition, as the language of education is an important factor in the children's best interests.

However, the Court declined to order a change of schools on appeal, concluding that given the passage of time, it would no longer be in the children's best interests to disrupt their current education in a French immersion program.

The appeal was dismissed.

The appellant wife appealed a trial decision ordering her to pay an equalization payment of $117,514.50 and costs to the respondent husband.

The primary issue was the division of the husband's pension, specifically whether the wife was entitled to a share of the pension's growth during their five-and-a-half-year pre-marital cohabitation period based on unjust enrichment.

The Court of Appeal dismissed the appeal, finding no unjust enrichment as the relationship did not constitute a joint family venture and the wife had not suffered a corresponding deprivation.

The Court also rejected arguments regarding the application of new pension valuation legislation, unequal division of net family property, instalment payments, trial fairness, and costs.

The appellant appealed a family law trial decision.

The Court of Appeal found that the trial judge's reasons for judgment were woefully inadequate, as they lacked necessary findings of fact and failed to show the path taken to reach the conclusions, including those related to imputed income.

The Court set aside the challenged orders and directed an expedited new trial for all issues.

The moving party sought summary judgment requiring a pension plan administrator to pay her a pre‑retirement death benefit under a federally regulated pension plan following the death of her former spouse.

The claim relied on a separation agreement stating that she would receive survivor benefits from the pension.

The court considered whether s. 25(4) of the Pension Benefits Standards Act permitted assignment of a pre‑retirement death benefit to a former spouse and whether the language of the parties’ separation agreement and related documents constituted an effective assignment.

Although the court held that the statute permits assignment of such benefits, it concluded the wording of the separation agreement and related direction did not clearly and unambiguously effect an assignment.

The statutory priority of the surviving spouse therefore prevailed and the death benefit was payable to the deceased member’s later spouse.

The respondent father brought a motion seeking an accounting of assets transferred to the applicant mother to satisfy a net family property equalization order, as well as temporary spousal support payable to him and potential striking of the mother's pleadings for non‑compliance.

The motion arose in the context of a 1998 final order granting the mother substantial equalization and support entitlements following a long marriage.

The court held that while the father could seek disclosure relating to credits against the equalization judgment, he had not utilized available disclosure mechanisms under the Family Law Rules and had not provided updated financial disclosure required for a motion to change support.

The court also found no sufficient explanation for the father’s request to terminate and reverse spousal support obligations after many years.

The motion was dismissed, with disclosure issues left to proceed through normal procedural mechanisms.

The respondent in a family law appeal brought a motion for security for costs and an adjournment.

The appellant, who had been denied joint custody at trial, appealed primarily on the basis that the trial judge failed to properly consider his section 23 Charter rights regarding French language education for the children.

The appellant had declared bankruptcy shortly after the trial, avoiding a significant costs award.

The Court of Appeal found that while the appeal was not frivolous, it had a very low prospect of success.

Given the appellant's conduct, bankruptcy, and the low prospect of success, the court ordered the appellant to post $15,000 in security for costs and granted a short adjournment of the appeal.

The mother applied to relocate with the parties' child from Toronto to Kingston.

The trial judge granted the application, focusing heavily on the mother's reasons for moving and her relationship with the paternal family.

The father appealed.

The Court of Appeal allowed the appeal, finding that the trial judge erred in applying the Gordon v. Goertz factors.

Specifically, the trial judge failed to give sufficient weight to the maximum contact principle and inappropriately treated the mother's reasons for moving as the primary factor, despite this not being an exceptional case where such reasons were relevant to her ability to meet the child's needs.

The order allowing the relocation was set aside.

The appellant and respondent, former common-law partners, resolved their family law proceedings through mediation/arbitration.

The appellant subsequently issued a civil statement of claim against the respondent and her counsel, alleging fraudulent misrepresentation regarding child support and financial disclosure, and seeking damages.

The motion judge struck the statement of claim as frivolous, vexatious, an abuse of process, and barred by res judicata.

The Court of Appeal dismissed the appeal, holding that the civil action was an abuse of process attempting to circumvent the family law statutory scheme, an impermissible collateral attack on existing family court orders, and barred by cause of action estoppel and the appellant's prior consent to the settlements.

The appellant father appealed an order under the Hague Convention requiring the return of his 13-year-old daughter to Mexico.

The child had previously been granted Convention refugee status in Canada based on abuse by the respondent mother.

The Court of Appeal allowed the appeal, finding no conflict between the Hague Convention and the principle of non-refoulement in the Immigration and Refugee Protection Act.

The court held that a refugee child's s. 7 Charter rights are engaged in a Hague application, requiring a risk assessment and procedural fairness, including notice and an opportunity to be heard.

A new hearing was ordered.

The mother brought an application under the Hague Convention for the return of her 13-year-old child to Mexico.

The child had previously made a successful refugee claim in Canada based on allegations of abuse by the mother.

The motion judge ordered the child's return.

The father appealed.

The Court of Appeal allowed the appeal, finding that the motion judge erred by failing to conduct a meaningful risk assessment regarding the return of a recognized refugee.

The court set aside the return order and directed a new hearing.

The appellant appealed an order granting summary judgment to the respondent and dismissing her solicitor negligence action on the basis that the limitation period had expired.

The appellant argued she did not know the material facts of her claim until she received the results of a Law Society investigation.

The Court of Appeal dismissed the appeal, finding that the appellant's own correspondence demonstrated she had subjective knowledge of the material facts underlying her complaints more than two years before commencing the action.

Following the dismissal of both the appeal and cross-appeal, the parties made written submissions on costs.

The respondent sought $15,000, arguing the appeal was more complex and time-consuming than the cross-appeal.

The appellant argued for no costs on the basis of divided success.

The Court of Appeal agreed with the appellant and ordered no costs.

The appellant father appealed the dismissal of his application to vary a consent custody order to seek joint custody and an equal parenting schedule.

The Court of Appeal dismissed the appeal, finding no error in the application judge's conclusion that there was no material change in circumstances.

The court also upheld the application judge's decision to increase the father's weekday contact rather than imposing an equal parenting schedule, noting the judge properly considered the relevant factors including enhancing contact between the child and the father's new family.

Following a 27-year marriage, the parties separated and engaged in a collaborative family law process to resolve issues including the valuation of their jointly owned businesses.

The process broke down, but the parties reached an informal agreement regarding the buyout of the wife's shares, which was partially performed.

The husband later initiated proceedings for divorce, equalization, and a compelled transfer of shares.

The trial judge found a binding agreement existed regarding the share valuation, ordered the husband to pay $800 per month in spousal support, and awarded the husband substantial indemnity costs due to the wife's unreasonable settlement demands.

The Court of Appeal dismissed both the husband's appeal and the wife's cross-appeal, upholding the trial judge's findings on the binding nature of the agreement, the spousal support award, and the costs order.

The appellant husband appealed a trial decision finding that he and his wife owed a valid debt of $220,000 to the wife's brother under a promissory note.

The Court of Appeal allowed the appeal, finding that the documentary evidence demonstrated the funds were a gift to the wife, not a true loan, and dismissed the brother's action.

The Court also dismissed the wife's cross-appeal, finding that prior written instructions did not constitute a valid domestic contract to exclude the funds from net family property, and that an equal division of net family properties was not unconscionable under s. 5(6) of the Family Law Act.

The Court ordered the husband to pay an equalization payment and directed the buyout or sale of the matrimonial home.

The appellant appealed a summary judgment dismissing her solicitor negligence claim against her former lawyers.

The Court of Appeal upheld the motion judge's finding that there was no genuine issue for trial regarding discoverability.

The court noted that the appellant knew or ought to have known of the material facts giving rise to the claim when she signed a settlement agreement with the benefit of new counsel, yet she waited more than six years to commence the action.

The appeal was dismissed as statute-barred.

The appellant appealed a motion judge's order staying Ontario family law proceedings in favour of Mexican proceedings.

The appellant argued the motion judge erred by failing to implement a prior consent order that mandated binding mediation-arbitration.

The Court of Appeal allowed the appeal, finding that staying the proceedings without setting aside the prior order was an impermissible collateral attack.

The Court also held that the mediation-arbitration agreement was valid even though it was signed by counsel rather than the parties themselves, applying the principle from Geropoulos v. Geropoulos.