Philip M. Epstein

The deceased was subject to court orders requiring him to pay spousal and child support and to maintain his wife as the irrevocable beneficiary of his life insurance policy.

After separation, the deceased entered into a relationship with another woman whose child was born three months after his death.

The deceased left an insolvent estate.

The other woman brought an application for dependants' relief seeking to claw back the life insurance proceeds into the estate under section 72(1)(f) of the Succession Law Reform Act.

The wife sought a declaration that the policy did not form part of the estate or that she was a creditor whose rights were protected under section 72(7) of the Act.

The trial judge and Divisional Court held the policy formed part of the estate.

The Court of Appeal allowed the appeal, holding that section 72(7) excludes from the claw back the amount of proceeds required to satisfy the deceased's court-ordered spousal and child support obligations where the support recipient was designated as the irrevocable beneficiary.

On a motion for interim spousal support arising from a lengthy unmarried cohabitation, the court found a prima facie case that the claimant was a spouse within the meaning of the Family Law Act and had entitlement to support.

The court held that interim support could rest on both a compensatory element and, more importantly, a non-compensatory needs basis measured against the parties' highly extravagant lifestyle and the payor's substantial means.

The court further held that support should presumptively commence when notice of the claim was given and ordered retroactive interim support from April 26, 2012.

After considering gross-up principles under the Child Support Guidelines and the discretionary use of the SSAG in a high-income case, the court fixed interim support at $25,000 per month until trial.

The appellant challenged an order refusing to stay an Ontario application for spousal support and a beneficial ownership declaration respecting Ontario cottage properties.

Applying the real and substantial connection framework, the court held that Ontario had jurisdiction because the property was located in Ontario and the parties were ordinarily resident in Ontario as well as Florida during the final years of the relationship.

The court further held that the appellant failed to establish that Florida was clearly the more appropriate forum, including because the respondent would lose a legitimate juridical advantage on support under Florida law.

Ontario law was also properly applied to both the unjust enrichment and support claims.

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.

Pre-trial motion decision in a family law matter concerning a motion to change a prior order that granted the applicant custody of two children and denied the respondent access.

The respondent sought to vary the order based on completion of substance abuse treatment.

The court addressed multiple pre-trial motions including: permission for the applicant and her spouse to participate in cross-examination via Skype from Denmark; disclosure of police records concerning the respondent; extensive mutual disclosure requests; and whether to set aside or stay prior court orders.

The court permitted Skype cross-examination based on financial hardship and the balance of convenience, ordered disclosure of police records with court screening, granted mutual disclosure requests, and stayed the order requiring production of children for supervised access while declining to set aside the original custody order.

The appellant appealed a trial judgment awarding spousal support to the respondent, challenging the trial judge's credibility findings and factual determinations regarding the respondent's immigration status and employment prospects.

The trial judge had found the appellant to be untruthful and accepted the respondent's evidence that she would suffer reduced career opportunities in South Korea due to the cultural stigma of a failed interracial marriage.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the trial judge's credibility assessments and concluding that the trial judge fully explained why the severe economic disadvantage suffered by the respondent justified a support award outside the Spousal Support Advisory Guidelines.

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 moving parties brought motions within an ongoing family law appeal.

The Court of Appeal granted an order directing the Office of the Children's Lawyer to represent the child on the appeal.

The court set strict timelines for the filing of fresh evidence and factums to ensure the appeal could proceed on its scheduled dates, emphasizing the best interests of the child.

The respondent mother was ordered to permit the OCL reasonable access to the child.

Three organizations (UNHCR, CCR, and CCLA) brought motions for leave to intervene in an appeal concerning the return of a child to Mexico under the Hague Convention.

The child had been granted refugee status in Canada.

The respondent on appeal sought to adjourn the intervention motions until after her motion to quash the appeal was decided.

The court dismissed the adjournment request to avoid delaying the scheduled appeal hearing.

The court granted leave to intervene to all three organizations, finding they could make useful contributions on the intersection of refugee law, the Hague Convention, and Charter rights, without causing injustice to the parties.

Strict conditions and page limits were imposed on the interveners.

The appellant father sought an extension of time to perfect his appeal of an order under the Hague Convention returning his child to Mexico.

The appellant's counsel missed the deadline by one day due to a misunderstanding of the Rules of Civil Procedure regarding whether a transcript of the motion hearing constituted 'evidence'.

The respondent mother opposed the motion, arguing the appeal was an abuse of process driven by the child's aunt rather than the father.

The court granted the brief extension, finding the intention to appeal was maintained, the delay was explained, and issues of standing and abuse of process were best left for the panel hearing the appeal.

Following a successful appeal under the Hague Convention ordering the return of a child to England, the appellant father sought costs of $15,000 for the appeal and $15,000 for the application hearing.

The respondent mother argued for no costs or $5,000.

The Court of Appeal awarded the appellant costs for both proceedings, fixed in the aggregate amount of $5,000 on a partial indemnity scale, balancing the need for deterrence with the relative financial situations of the parties.

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 mother brought the child from England to Canada for a vacation and subsequently refused to return.

The father applied under the Hague Convention for the child's return.

The application judge dismissed the application, finding the child was habitually resident in Ontario and that returning her to England would create an intolerable situation.

On appeal, the Court of Appeal found the application judge erred in determining habitual residence by focusing on the mother's intentions and post-retention facts.

The Court also found the application judge set the threshold for an 'intolerable situation' too low.

The appeal was allowed and the child was ordered returned to England.

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 moving party, who acted as the appellant's trial counsel, sought leave to intervene in the appeal.

The trial judge had been highly critical of the moving party's conduct, finding he deliberately suppressed information.

The moving party argued this misapprehended the evidence and harmed his professional reputation.

The Court of Appeal granted the motion, finding that the protection of a proposed intervenor's integrity is a sufficient interest to engage Rule 13.01(1)(a) of the Rules of Civil Procedure, especially when no other remedies are practically available.

Following the appellant's substantial success on appeal and at trial in a family law matter, the Court of Appeal fixed costs for both proceedings.

The court noted the respondent's unreasonable conduct in prolonging the trial and failing to make or accept reasonable offers to settle.

Applying the factors under Rule 24(11) of the Family Law Rules, the court awarded the appellant $275,000 for the trial and $25,000 for the appeal, allowing the award to be offset against the appellant's spousal support arrears.

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.