Court of Appeal for Ontario
Before: Goudge, Lang and Karakatsanis JJ.A.
Between
Nabila Zaki Nashid
Applicant (Respondent in Appeal)
and
Waheed Michael
Respondent (Appellant)
Counsel:
Avra Rosen, for the appellant
Evelyn Rayson and Kenneth Fishman, for the respondent
Heard: October 5, 2010
On appeal from the reasons for decision of Justice Faye E. McWatt of the Superior Court of Justice dated April 1, 2010 and the subsequent cost award dated April 26, 2010.
Endorsement
1The parties do not disagree about the law. The appellant says there were no important changes or additions to the accepted offer proposed by his executed separation agreement that would warrant the application of the doctrine of repudiation.
2We disagree. Most important, keeping in mind the family law context, was the change of control of the matrimonial home and another property from the respondent to the appellant. He proposed two properties be transferred to him before sale or other transfer and without specifying any terms of the trust or time limitations. This was a fundamental alteration to the accepted offer. It was not a negotiation of implementation as the changes were contained in a separation agreement that was signed by the appellant and put forward shortly after the accepted offer.
3In our view the doctrine of repudiation was properly applicable. We would therefore not interfere with the result reached by the motion judge.
4Appeal dismissed. Costs to the respondent fixed at $5000 inclusive of disbursements and applicable taxes.
RELEASED: OCT 08 2010 (“S.T.G.”)
“S. T. Goudge J.A.”
“S. Lang J.A.”
“Karaktsanis J.A.”
