Court of Appeal for Ontario

Citation: Nashid v. Michael, 2010 ONCA 661

Date: 20101008

Docket: C52039

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

By The Court:

[1] The 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.

[2] We 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.

[3] In our view the doctrine of repudiation was properly applicable. We would therefore not interfere with the result reached by the motion judge.

[4] Appeal 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.”