Philip M. Epstein

The moving party brought a motion to quash an appeal from an order of the Superior Court of Justice.

The Court of Appeal held that the order appealed from was interlocutory in nature, meaning leave to appeal from the Divisional Court was required.

The court noted that the order did not preclude the responding party from renewing an abuse of process argument at the hearing of the main application.

The motion to quash was allowed with costs awarded to the moving party.

The husband appealed a trial judgment setting aside a pre-nuptial marriage contract and ordering an equalization payment of $5.3 million, plus spousal and child support.

The trial judge set aside the contract under s. 56(4) of the Family Law Act because the husband deliberately failed to disclose the value of his significant business assets, misrepresented his financial position, and interfered with the wife's independent legal advice.

The Court of Appeal upheld the decision, agreeing that the husband's conduct warranted setting aside the contract.

The Court also held that a post-separation, market-driven decline in the value of the husband's shares did not justify an unequal division of net family property under s. 5(6)(h) of the Act.

The appeal was dismissed.

The court issued an endorsement regarding costs following a motion.

Applying the principle that costs follow the event and considering the factors in Rules 49 and 57.01 of the Rules of Civil Procedure, the court awarded the respondent costs of $5,000 on a partial indemnity scale.

The moving party sought leave to appeal an order dismissing a motion to compel a non-resident party to attend in Ontario for questioning under Rule 20(14) of the Family Law Rules.

The moving party argued there were conflicting decisions on whether the rule limits the court's discretion to order a non-resident to come to Ontario.

The Divisional Court dismissed the motion, finding that the allegedly conflicting decision relied on the Rules of Civil Procedure rather than the Family Law Rules, and therefore did not constitute a conflicting decision.

The appellant husband appealed a trial judgment ordering him to pay substantial spousal and child support, equalization, and costs.

He challenged the trial judge's orders that pierced the corporate veil of his solely-owned companies to secure the amounts owed, and that made the costs and pre-judgment interest enforceable as spousal support.

The Court of Appeal upheld the piercing of the corporate veil, finding it appropriate in family law cases where a spouse completely dominates a corporation and uses it to shield assets from support obligations.

The Court also upheld the enforcement of costs as spousal support under the Family Responsibility and Support Enforcement Act, but allowed the appeal in part to remove pre-judgment interest on the equalization payment from being enforceable as support.

Following the release of the main appeal decision, the Court of Appeal addressed the issue of costs.

Considering the general importance of the issues, the limited success achieved by the appellant, and the appellant's advancement of new arguments not raised before the motion judge, the court set aside the motion judge's costs order and ordered that the parties bear their own costs both in the Court of Appeal and in the court below.

The mother brought a motion to vary a child support order, seeking increased contribution from the father for post-secondary education expenses for their two adult sons.

The sons had substantial capital assets from gifts.

The motion judge ordered the father to pay table support and a proportionate share of the education expenses, requiring the sons to contribute only from their summer earnings.

The father appealed, arguing the sons should use their capital assets first.

The Court of Appeal allowed the appeal in part, holding that the motion judge erred in failing to consider the extent to which the children should be expected to contribute to their own education expenses out of their capital assets under s. 3(2)(b) and s. 7 of the Federal Child Support Guidelines.

The appellant appealed the dismissal of his action for solicitor's negligence.

The appellant had retained the respondent solicitor to obtain a speedy divorce so he could remarry.

Against the advice of the solicitor and his accountant, the appellant signed a separation agreement prepared by his wife's lawyer because he did not want to risk upsetting his wife and delaying the divorce.

The trial judge found the solicitor met the standard of care and the appellant failed to prove damages.

The Court of Appeal found no basis to interfere with the trial judge's findings and dismissed the appeal.

The parties divorced in 1987, with the respondent ordered to pay spousal and child support.

In 1992, the respondent's income dropped significantly when he began a medical residency, and a variation order terminated spousal support on consent.

Years later, after the respondent's income increased substantially, the appellant applied to vary the 1992 order to reinstate spousal support.

The motion judge dismissed the application, relying on previous appellate authority holding that a dismissed support claim cannot be varied.

The Court of Appeal allowed the appeal, overruling its previous decisions in light of the 1997 amendments to the Divorce Act.

The Court held that the expansive language of the amended Act provides courts with the jurisdiction to vary an earlier dismissal of spousal support.

The mother brought an application for child support for the parties' child, who was over the age of majority and attending university away from home.

The application judge ordered the father to pay retroactive child support, ongoing table amounts, and a pro-rated share of extraordinary expenses.

The father appealed.

The Court of Appeal allowed the appeal, finding that the application judge failed to properly consider the factors for retroactive support, lacked sufficient evidence to justify the extraordinary expenses, and erred by not considering whether the table amount was inappropriate under s. 3(2)(b) of the Guidelines for a child attending university away from home.

The court set aside the order and directed a trial of the outstanding issues.

The appellants appealed the dismissal of their action.

The Court of Appeal found no error in the motion judge's appreciation of the previous Court of Appeal order and upheld the decision to dismiss the action against all defendants, including one who had not formally moved for dismissal, as it was the intent of the motion brought by the other defendants.

The appellant wife appealed a summary judgment dismissing her claims for spousal support and an extension of time to claim a further equalization payment.

The parties had previously signed a separation agreement and an addendum waiving spousal support, but the wife suffered from severe mental illness and was on a disability pension.

The Court of Appeal allowed the appeal, finding that the motions judge erred by applying Rule 20 to the complex analysis required by Miglin v. Miglin.

The Court also held that the motions judge improperly decided credibility issues and reversed the burden of proof regarding the limitation period extension under section 2(8) of the Family Law Act.

The appellants appealed an order refusing to allow their pleadings to be amended to include a claim for breach of fiduciary duty.

The Court of Appeal dismissed the appeal, expressing serious reservations that the conduct constituted a breach of fiduciary duty, and agreeing with the motions judge's alternative finding of laches.

The parties separated after 14 years of marriage and executed a comprehensive separation agreement that included a full and final release of spousal support.

The wife later applied for spousal support under s. 15.2 of the Divorce Act.

The Supreme Court of Canada held that the strict threshold from the Pelech trilogy no longer applies under the 1985 Divorce Act.

Instead, courts must apply a two-stage test, examining the circumstances of the agreement's formation and whether it still reflects the parties' intentions and substantially complies with the Act's objectives at the time of the application.

Applying this framework, the Court upheld the separation agreement and dismissed the wife's claim for spousal support.

The moving party father sought to stay a joint custody order and parenting schedule pending his appeal.

The trial judge had awarded joint custody despite the parents' conflict, relying on parallel parenting principles.

The Court of Appeal dismissed the motion for a stay, finding that the father failed to show irreparable harm to the child or that the balance of convenience favoured a stay.

The court noted the mother's historical role as primary caregiver and the minimal differences between the trial judge's parenting schedule and the previous interim order.

The appellants appealed an order directing an assessment to take place in Newmarket rather than Toronto, and fixing costs.

The Court of Appeal upheld the venue decision, finding it reasonable under the forum non conveniens doctrine.

However, the Court set aside the costs order and remitted it for rehearing, as the application judge erred by fixing the scale and amount without giving the appellants an opportunity to be heard.

Costs of the appeal were awarded to the respondents on a partial indemnity basis fixed at $8,000 due to divided success.

The parties were not married or living together when their child was born.

The mother registered the child's birth using her surname and did not acknowledge the father on the Statement of Live Birth, pursuant to s. 10(3)4 of the Vital Statistics Act.

The father applied for an order requiring the mother to execute a joint election form to change the child's name to a hyphenated surname.

The application was dismissed.

On appeal, the Court of Appeal upheld the decision, finding that the Act allows a mother to know the identity of the father but choose not to acknowledge him for the purpose of birth registration, thereby giving the child her surname.

Following the release of the court's judgment, the appellant failed to file written submissions regarding the remaining property issues affected by the respondent's bankruptcy.

Consequently, the appeal with respect to all remaining issues was dismissed as abandoned.

The court fixed the costs of the appeal payable to the respondent at $12,000 on a partial indemnity basis.

The appellant husband appealed the dismissal of his motion for judgment based on an alleged settlement between the parties.

The Court of Appeal found that the wife's Offer to Settle and the husband's acceptance did not constitute a binding contract, as the offer left open the future negotiation of a shareholders agreement and was conditional upon further documentation.

The appeal was dismissed with costs.

The father appealed a trial judgment regarding child support arrears and custody, while the mother cross-appealed a condition requiring her to relocate to Ottawa to retain custody.

The Court of Appeal dismissed the father's appeal, upholding the reduction in support arrears and the award of custody to the mother.

The Court allowed the mother's cross-appeal, striking down the condition that she return to Ottawa, finding that uprooting the children from their established environment in Stoney Creek was not in their best interests.