Robert Fernandes

The appellant appealed a family arbitration award dealing with property, spousal support, and child support.

The Superior Court of Justice determined that the standard of review for family arbitration appeals is the Housen standard.

The court upheld the arbitrator's use of hindsight evidence for property valuation and his imputation of income to the respondent.

However, the court found the arbitrator erred by including a statute-barred debt in the appellant's net family property, by failing to provide adequate reasons for awarding lump sum rather than indefinite periodic spousal support, and by exceeding his jurisdiction in ordering the parties to refile tax returns.

The appeal was allowed in part, with the court substituting an order for indefinite periodic spousal support and adjusting the equalization payment.

The applicant mother brought a motion for shared parenting of the parties' three-year-old child following the tragic drowning death of their younger child.

After the accident, the respondent father unilaterally assumed sole care of the surviving child and restricted the mother to supervised parenting time, alleging she was responsible for the death and was an unfit parent.

The court relied on evidence from a Children's Aid Society worker who investigated the family and found no child protection concerns regarding the mother.

The court strongly criticized the father's resort to self-help and his derogation of the mother, ultimately granting the mother's motion for primary care during the week with the father having weekend parenting time.

Following a motion where the applicant was permitted to amend the application, the respondent was unsuccessful on disclosure, and neither party obtained an advance of funds, the court determined the issue of costs.

The applicant sought $2,073.06 and the respondent sought $17,500.00.

Considering the mixed success and the parties' offers, the court ordered the applicant to pay the respondent costs of $3,000 inclusive of fees, disbursements, and taxes.

The applicant moved for an advance on funds held in trust from the sale of the matrimonial home, leave to amend his application, and disclosure of a deed and survey for the respondent's property in Sri Lanka.

The respondent also requested an advance from the trust funds.

The court dismissed both requests for an advance, finding it could not determine a minimum equalization payment on the record.

The court granted the applicant leave to amend his application, conditional on paying costs, and ordered the respondent to produce the deed and survey for the Sri Lankan property to facilitate a previously ordered appraisal.

The applicant husband and respondent wife separated after a nearly seven-year marriage.

The trial focused on spousal support and the equalization of net family property.

The court imputed a higher income to the husband, finding he intentionally underemployed himself and diverted business to a new company run by his parents.

The wife was awarded retroactive and ongoing spousal support on compensatory and need-based grounds.

For equalization, the court valued the husband's business using an income-based approach, discounted his claimed interfamily loans by 90%, and dismissed his claim that the wife absconded with $100,000 in jewelry.

The husband was ordered to pay an equalization payment of $95,967.85.

The applicant father brought a motion to change a final order to increase his access to his two children, alleging the respondent mother was alienating them.

The Office of the Children's Lawyer (OCL) provided a report recommending increased access, noting the mother's unfounded allegations of abuse.

The court directed a trial on the issue of custody and access, finding that the untested affidavits and limited cross-examination of the OCL investigator required a full evidentiary record.

However, finding a material change in circumstances due to the denial of access and the OCL report's findings, the court varied the final order on an interim basis, significantly increasing the father's access to preserve his relationship with the children.

Following a four-day family law trial regarding a motion to vary child support and a claim for child support from the other parent, both claims were dismissed and child support arrears were fixed.

The court considered the costs consequences under Rule 24 of the Family Law Rules.

The successful party sought full recovery costs alleging bad faith conduct including failure to provide disclosure, inaccurate financial statements, and unreasonable litigation conduct.

The court found no bad faith but concluded the responding party’s conduct and testimony unnecessarily prolonged the trial.

Costs were awarded in a reduced amount reflecting the successful party’s entitlement while excluding costs related to an earlier motion.

The plaintiff moved for summary judgment for the balance of proceeds from the sale of a property she held in trust for the defendants, her daughter and son-in-law.

The son-in-law opposed the motion, arguing the plaintiff breached her trust duties by delegating control of the trust funds to her daughter and by selling the property improvidently.

The court dismissed the motion, finding that the plaintiff's delegation of discretionary trust powers and the need for an accounting of the trust funds raised genuine issues requiring a trial.