Stanley J. Kershman

Following a motion concerning prospective and retroactive spousal support, the court addressed the issue of costs.

The applicant had been awarded interim spousal support of $7,000 per month retroactive to April 1, 2012.

The respondent argued that a prior offer to settle was more favourable than the motion outcome and should affect costs under Rule 18 of the Family Law Rules.

The court found the offer was not more favourable because it involved a lower monthly support amount and delayed payment of arrears.

Costs of $5,000 on a partial indemnity basis were therefore awarded to the applicant under Rule 24(11) of the Family Law Rules.

A creditor brought a motion under ss. 62(2.1) and 178(1)(e) of the Bankruptcy and Insolvency Act seeking a declaration that a debt arising from a financed travel trailer purchase was not released by the debtor’s consumer proposal due to alleged fraudulent misrepresentation in a credit application.

The creditor argued the debtor failed to disclose an existing mortgage, which would have affected the lending decision.

The court found the debtor had disclosed a monthly mortgage payment in the application and that the documentation had been prepared by a dealership representative rather than the debtor or creditor.

The court concluded the representation was not false and that the elements of fraudulent misrepresentation under s. 178(1)(e) were not established.

The creditor’s motion seeking a declaration that the debt survived the proposal was dismissed.

The applicant brought a family law motion addressing child support, arrears, section 7 expenses, access-related travel costs, life insurance security for support obligations, and an alleged alcohol restriction during access.

The court set ongoing child support according to the applicable Child Support Guidelines table amount based on the respondent’s income and rejected the respondent’s request to reduce support due to travel expenses incurred to exercise access.

However, the court ordered a limited contribution from the applicant toward the respondent’s access travel costs, payable per visit and not as a set-off against child support.

The court confirmed significant child support arrears due to the respondent’s failure to disclose income annually as required by a prior order and ordered repayment by monthly instalments.

Section 7 expenses were ordered to be shared proportionally to income, and the respondent was required to designate the applicant as life insurance trustee for the children.

The requested alcohol ban during access was declined for lack of evidence.

The defendant brought a motion for summary judgment seeking dismissal of an action alleging the loss of money and sensitive documents from a briefcase stolen while the plaintiff was on the defendant’s premises.

The self‑represented plaintiff failed to comply with multiple court orders, did not deliver an affidavit of documents, and filed no responding affidavit material to the summary judgment motion.

Applying Rule 20 of the Rules of Civil Procedure and the “full appreciation test” articulated in Combined Air Mechanical Services Inc. v. Flesch, the court held that the record disclosed no genuine issue requiring a trial.

The court found the statement of claim contained only bald allegations unsupported by evidence and that the plaintiff had not put his best foot forward.

Summary judgment was granted dismissing the action.

Following a four‑day family law trial concerning the appropriate school for the parties’ child, the successful party sought substantial indemnity costs exceeding $234,000 based on offers to settle and alleged unreasonable conduct by the other party.

The court confirmed the presumption under Rule 24 of the Family Law Rules that the successful party is entitled to costs but emphasized that the quantum must remain fair and reasonable in light of the nature of the dispute, the complexity of the issue, and the parties’ financial circumstances.

The court found both parties acted reasonably and rejected claims for full recovery, significantly reducing counsel’s hourly rates and the hours claimed.

Applying the reasonableness principle and considering Rule 24 factors, the court fixed fees at $73,964.15 plus disbursements.

A total costs award of $78,028.03 was ordered, payable in monthly instalments.

The father brought a motion seeking a temporary variation of child support based on a material change in parenting arrangements.

After the prior order contemplated a 60/40 parenting schedule for two children, the eldest child began residing full-time with the father while the younger child continued to reside primarily with him on a 60/40 basis.

The court found that the change in residence constituted a material change in circumstances.

Applying the Child Support Guidelines, the court ordered full table support for the child residing exclusively with the father and a set-off calculation for the child with shared parenting time.

The court also ordered proportional sharing of section 7 expenses and directed that support payments be enforced through the Family Responsibility Office.

The defendants brought summary judgment motions in a civil action while the plaintiffs brought a motion to amend the statement of claim.

During the hearing, the parties did not address whether the defendants intended their summary judgment motions to apply to the relief sought in any amended pleading should the amendment be granted.

The court directed counsel to arrange a brief appearance or provide written submissions addressing this procedural issue.

The endorsement addresses scheduling and clarification of the scope of the summary judgment motions.

The moving party (former husband) brought a motion for summary judgment to dismiss the responding party's (former wife) application to set aside their separation agreement and claim spousal support and equalization of net family property.

The responding party alleged she signed the agreement under duress, without proper financial disclosure, and without independent legal advice.

The court applied the "full appreciation test" for summary judgment and the Miglin two-stage test for setting aside domestic contracts.

The court found no evidence of duress, noted the responding party had counsel but chose to sign without them, and concluded the agreement substantially complied with the Divorce Act.

The motion for summary judgment was granted and the application was dismissed.

A bankrupt chiropractor applied for discharge from bankruptcy arising primarily from large personal income tax liabilities exceeding $200,000.

The Canada Revenue Agency, the trustee, and the Office of the Superintendent of Bankruptcy opposed discharge, alleging improper asset transfers, inaccurate disclosures, and failure to make reasonable efforts to pay tax debts.

The court found that the bankruptcy was tax-driven under s. 172.1 of the Bankruptcy and Insolvency Act and that the bankrupt had transferred assets to his spouse at artificially low values and failed to disclose significant transactions, including RRSP withdrawals and property transfers.

The court also determined that the bankrupt’s reported income was artificially low and imputed a higher income based on professional capacity.

Balancing the statutory factors and the need to maintain the integrity of the bankruptcy system, the court granted a conditional discharge requiring substantial payments and further financial disclosure.

A proposal trustee brought a motion without notice seeking approval of interim professional fees and disbursements incurred during the period following the filing of a Notice of Intention to Make a Proposal under the Bankruptcy and Insolvency Act.

The trustee relied on provisions of the BIA and Directive 27R to justify payment before a proposal was filed and without notifying creditors.

The court held that the statutory provisions relied upon did not authorize such payment where no proposal had yet been filed and the trustee was not carrying on the debtor’s business.

The court emphasized that creditors, particularly secured creditors, may wish to oppose the request.

The motion was refused, with leave to bring the request again on notice to creditors.

The applicant father sought an order under s. 16 of the Divorce Act to have the parties' nine-year-old daughter transfer from a French-language school to an English-language private school with an extended French program.

The respondent mother opposed the transfer, arguing the child needed to maintain her French culture and stability.

The parties shared joint custody with an equal time-sharing schedule.

The court considered factors including the parents' ability to participate in education, the child's stability, cultural heritage, sibling relationships, holiday schedules, and academic performance.

The court found that transferring to the English-language school was in the child's best interests, as it would align her schedule with her sisters, provide smaller class sizes, and not significantly compromise her bilingualism or French culture.

Following earlier reasons for judgment in an estate dispute, the applicants sought leave to make additional submissions on costs relating to offers to settle exchanged between the parties.

The respondents objected to the filing of further submissions.

The court held that counsel had already been invited to provide costs outlines at the end of the hearing and that no information regarding offers to settle had been raised at that time.

The court declined to receive any further submissions on costs and confirmed that the prior determination on costs would stand.

The responding party sought to rescind a restraining order previously issued in a family law proceeding by submitting an affidavit requesting that the order be set aside.

No formal Notice of Motion was served or filed.

The court reviewed the affidavit and determined that the information provided did not justify rescinding the existing restraining order.

The court held that the restraining order would remain in effect until further order.

The request to rescind the order was therefore refused.

The Estate Trustees brought an application to pass their accounts for the period from June 9, 2010, to June 30, 2011.

The objecting beneficiaries challenged the legal fees incurred in defending ongoing matrimonial litigation and the quantum of the Estate Trustees' compensation claimed at 2.5%.

The court found the legal fees were reasonably incurred given the high-conflict matrimonial litigation.

Applying the five factors from Re Toronto General Trusts, the court reduced the compensation slightly to 2.25% across all categories, fixing it at $228,261.41.

The court also found the Estate Trustees were justified in requiring releases and withholding bequests due to threatened litigation.

The applicant mother brought a motion seeking to vary a prior access order, requesting supervised access, disclosure of the respondent father's mental health records, and restraining relief due to concerns about the father's deteriorating mental health and erratic behaviour.

Evidence showed the father had a prior psychiatric diagnosis, had ceased medical treatment, failed to cooperate with child protection agencies, and engaged in behaviour raising concerns about the child's safety.

The court found a material change in circumstances under s. 29 of the Children's Law Reform Act and concluded that unsupervised access was no longer in the child's best interests.

The court ordered supervised access at the mother's discretion pending a mental health evaluation, granted a restraining order regarding the child's school and daycare, and imposed restrictions preventing the father from commencing further proceedings without leave under s. 140 of the Courts of Justice Act.

Following a prior finding of contempt of court in a family law proceeding, the court conducted a sanctions hearing to determine the appropriate penalty.

The respondent had failed to comply with prior court orders, including disclosure obligations and payment of previously ordered costs.

The court imposed a short custodial sentence for contempt and ordered payment of outstanding and new costs.

The court further directed that the respondent’s pleadings would be automatically struck if costs were not paid within the specified time and ordered completion of remaining disclosure.

The plaintiffs appealed a Master's decision dismissing their motion to exclude the defendant police officers from being present during each other's examinations for discovery.

The Superior Court of Justice determined that the standard of review for this mixed question of fact and law was palpable and overriding error.

Finding that the Master thoroughly reviewed the applicable law and that the plaintiffs' affidavit evidence failed to set out reasons for exclusion, the court found no palpable or overriding error and dismissed the appeal.

In a family law proceeding concerning property division and disclosure, the respondent brought a motion seeking to adjourn a scheduled settlement conference and compel further financial disclosure relating to assets allegedly located in Canada and Portugal.

The court refused to adjourn the settlement conference, finding that a prior judicial order had already fixed the date and that delaying the matter to accommodate former counsel who had long ceased acting was not in the interests of justice.

The court reviewed the disputed disclosure requests and ordered limited additional production while permitting the moving party to obtain certain information directly from third parties with the other party’s consent.

Issues concerning whether certain jointly held assets with a parent should be included in the net family property calculation were left for determination at trial.

Success was divided and no costs were awarded.

The plaintiff brought a civil action alleging assault, sexual assault, harassment, intentional infliction of mental distress, discrimination under the Ontario Human Rights Code, and negligence arising from her arrest by police officers following an altercation during a traffic stop.

The court considered whether the officers used excessive force during the arrest and detention, whether sexualized comments and touching constituted sexual assault, and whether the conduct amounted to intentional infliction of mental suffering.

The court relied in part on the plaintiff’s prior guilty plea to obstructing a police officer and accepted the officers’ evidence that the plaintiff had bodychecked one officer and resisted arrest.

It held that the police were justified in using reasonable force under s. 25(1) of the Criminal Code and that the plaintiff failed to prove the alleged torts on a balance of probabilities.

Claims under s. 46.1 of the Ontario Human Rights Code were also dismissed because the provision was not in force at the time of the events.

The moving party brought a motion to change a prior family court order seeking credit for alleged overpayments of child support and section 7 expenses relating to an adult child attending post‑secondary education.

The court examined whether the adult child remained a “child of the marriage” under s. 2 of the Divorce Act during periods when she withdrew from school due to illness and later worked prior to returning to school.

Applying the earlier order and considering the evidence of illness and schooling, the court held that support remained payable for most of the period but not while the child worked nearly full‑time before resuming studies.

The request for credit for section 7 expenses was rejected and arrears repayment terms remained unchanged.