Stephen Kirby

The parties separated after a 16-year marriage.

The wife sought a resulting trust interest or unequal division of the husband's investment portfolio, which had grown significantly post-separation.

The court dismissed the trust and unequal division claims, finding the equalization of net family property regime applied.

Both parties were found to be intentionally under-employed, and incomes were imputed to both for support purposes.

The husband was ordered to pay an equalization payment, retroactive child support, and retroactive and ongoing spousal support.

The appellant appealed an arbitrator's award that determined it was not in the best interests of the parties' two children to be vaccinated.

The Superior Court of Justice allowed the appeal, finding the arbitrator erred in his gatekeeping function by qualifying the respondent's experts, whose evidence on vaccine safety was unreliable and outside their expertise.

The arbitrator also erred by failing to admit government immunization guides under the public documents exception to the hearsay rule.

Having excluded the respondent's expert evidence and admitted the public documents and fresh expert evidence, the court found that the children's best interests required vaccination.

The appellant was granted sole decision-making responsibility for the children's vaccinations, and the respondent was ordered not to tell the children that vaccines are unsafe.

The moving party (respondent mother) brought a motion seeking the recusal of the case management judge from hearing an appeal regarding the vaccination of the parties' children.

The moving party argued that a reasonable apprehension of bias existed based on the judge's prior preliminary rulings in the case, decisions in unrelated family law cases involving public health guidelines, and media coverage of those decisions.

The court dismissed the motion, finding that the prior decisions were based on existing law and did not demonstrate that the judge had entered the fray or predetermined the issues.

The court also held that a reasonable person would not rely on provocative media articles to conclude the judge could not decide the appeal fairly.

The respondent, having been entirely successful on the appeal of a family law matter, sought partial indemnity costs of $53,407.33.

The appellant argued the costs should not exceed $18,789.66.

The Court of Appeal applied the principle that costs must be fair, reasonable, and proportionate.

Acknowledging the voluminous record and the importance of the issues, including child custody, the court fixed the costs payable by the appellant to the respondent at $35,000 inclusive of disbursements and taxes.

The appellant mother appealed a trial judge's order granting sole custody of their daughter to the respondent father, ordering her to pay child support, equalization, and full recovery costs of $249,765.47.

The appellant argued that the trial process denied her natural justice, the credibility assessment was flawed, and the trial judge erred in determining income and post-separation adjustments.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's credibility assessment, her focus on the child's best interests, or her financial determinations.

Leave to appeal the costs award was also denied, as the trial judge properly exercised her discretion based on the appellant's bad faith conduct.

Following a 19-year marriage, the court determined unresolved financial issues including income for support, equalization, alleged fraudulent conveyances, lump sum spousal support, and a requested vesting order over the matrimonial home.

The respondent, a self-employed business partner who admitted past undeclared cash income, was found not credible, and the court preferred a lifestyle analysis to impute annual income of $142,000 while imputing minimum wage income to the applicant.

Transfers totalling $349,000 to the respondent's mother during the breakdown of the marriage were found to be fraudulent conveyances and subject to a resulting trust, bringing that value back into net family property.

The court ordered child support of $3,066 monthly, 74.6% contribution to qualifying section 7 expenses, lump sum spousal support of $335,465, and equalization of $342,070.

Because of repeated support defaults and anticipated non-compliance, the respondent's equity in the matrimonial home was vested in the applicant, and the restraining order claim was dismissed.

This decision addresses a motion for leave to intervene brought by the Medical Officer of Health (City of Toronto) (MOH) in an appeal concerning the vaccination of children.

The appellant sought to overturn an arbitrator's decision that declined to order the children's vaccination, while the respondent opposed vaccination.

The court determined it had jurisdiction to hear the intervention motion remotely and in writing during the COVID-19 pandemic.

Applying the test for intervention, the court found that the MOH had a substantial public interest in the issues of vaccine efficacy, expert evidence gatekeeping, and judicial notice of public health policy.

The MOH's distinct public health perspective was deemed a useful contribution without causing injustice to the parties.

Leave to intervene was granted.

The respondent husband brought a motion for the sale of the matrimonial home.

The applicant wife brought a cross-motion for exclusive possession, temporary spousal support, child support for three children (two adopted, one biological adult son), and an advance on equalization or interim disbursements.

The court dismissed the applicant's claims for exclusive possession, ongoing child support for all three children, and interim disbursements/equalization advance.

However, the court granted the applicant temporary spousal support of $5,000 per month and ordered an immediate payment of $100,000 to the applicant from the net proceeds of the matrimonial home sale, with a similar amount to the respondent, and the balance held in trust.

Retroactivity for support was reserved for trial.

This appeal concerned the interpretation of a separation agreement's reconciliation clause and its effect on a pension waiver.

The parties had separated, entered into an agreement, reconciled for almost nine years, and then separated again.

The separation agreement stipulated that it would become void if reconciliation lasted more than 90 days, with an exception for "any payment, conveyance or act" made or done pursuant to the agreement.

The trial judge found the wife's specific release of her rights to the husband's Canada Post pension survived reconciliation.

The Court of Appeal found the trial judge erred by misapprehending the evidence (no payment was made for the pension entitlement) and by failing to give effect to the express voiding term of the reconciliation clause.

The Court clarified that the pension release was voided, entitling the wife to a share of the pension from the date of marriage.

The appellant appealed an order dismissing his application to remove a writ of seizure and sale filed by a law firm against the matrimonial home.

The law firm had represented the appellant's wife in matrimonial litigation and obtained judgment for outstanding fees.

The appellant argued the writ constituted an encumbrance requiring his consent under section 21 of the Family Law Act.

The Court of Appeal dismissed the appeal, holding that the wife did not encumber the matrimonial home; rather, the law firm, as an arm's length creditor, was entitled to file the writ.

The appellant's interest in the home remains subject to the writ.

This decision addresses the allocation of parenting time and decision-making responsibilities following the Court of Appeal's allowance of an appeal in a family law matter.

The court was asked to determine the specific terms of a parallel parenting arrangement between separated parents regarding their six-year-old child.

The court rejected the mother's request for fresh evidence, finding sufficient information from the appeal record.

The court adopted a modified parenting schedule that balances the child's need for meaningful contact with both parents while minimizing school commuting time during the week.

The appellant mother appealed a Superior Court decision that had set aside an arbitrator's award regarding parenting and custody.

The arbitrator had conducted an eight-day hearing on a parenting plan review and awarded custody to the mother, permitting her to relocate the children from Toronto to Guelph to attend a specialized school.

The appeal judge found the arbitration process was fundamentally unfair because the father did not receive adequate notice of the mother's intent to move.

The Court of Appeal allowed the appeal and reinstated the arbitrator's award, finding that the proceedings were fair, the father acquiesced in the notice by not objecting during the hearing, and the best interests of the children in crisis outweighed procedural concerns raised only on appeal.

On appeal from a trial decision regarding custody and access of a six-year-old child, the Court of Appeal found that the trial judge erred by failing to apply the "maximum contact" principle under section 16(10) of the Divorce Act.

The trial judge had ordered that the child's primary residence remain with the mother, with the father receiving only one overnight per week and alternating weekends, and had granted joint custody in name only by giving the mother ultimate decision-making authority.

The Court of Appeal allowed the appeal and set aside the orders respecting parenting time and decision-making, requiring the parties to provide written submissions on the allocation of parenting time and decision-making responsibilities in a parallel parenting model.

The appellant appealed a trial judgment in a family law matter following an uncontested trial that proceeded after the appellant's pleadings were struck due to non-compliance with court orders.

The appellant sought a declaration that the vesting order granting title of the matrimonial home was made in error and challenged the award of spousal support as a lump sum payment from the sale proceeds.

The Court of Appeal dismissed the appeal, finding the vesting order was appropriate given the appellant's repeated failures to comply with court orders, and that the trial judge's reasons adequately explained the decision.

The applicant sought summary judgment for $500,000 from the deceased husband's estate, representing a life insurance policy he was contractually obligated to maintain for her benefit under a separation agreement but failed to obtain.

The respondent estate argued the clause was merely security for spousal support and subject to the Succession Law Reform Act clawback.

The court found the life insurance clause to be a "stand-alone" obligation, not solely security for support, and granted summary judgment for the applicant for the $500,000.

The issue of retroactive cost of living adjustments was reserved for further submissions.

The husband sought an extension of time to file a notice of appeal from a final family law order, a stay of that order pending appeal, and relief regarding the matrimonial home.

The trial judge had struck the husband's pleadings for failure to comply with undertakings and court orders, resulting in an uncontested trial where the wife was awarded lump-sum spousal support of $248,734, an equalization payment, costs, and a restraining order.

The matrimonial home was ordered sold.

The husband delayed five months before seeking the extension of time, during which he attempted to frustrate the sale and develop a litigation strategy rather than prepare his appeal.

The Court of Appeal granted the extension of time but dismissed the stay request and awarded substantial indemnity costs to the wife.

The court determined the costs of an appeal, a motion to set an appeal date, and a motion for fresh evidence in a family law dispute.

The appellant was awarded costs for the scheduling motion and the appeal, discounted for divided success, as he succeeded in setting aside the parenting award but not the financial issues.

The respondent was awarded costs for her substantially successful motion to admit fresh evidence.

The costs were netted against each other, resulting in the respondent owing the appellant $16,691.57.

The respondent/appellant (Mr. Petersoo) appealed an arbitration award concerning custody, mobility, and imputed income, and a costs award.

He argued procedural unfairness regarding late notice of mobility issues, misapprehension of evidence, reliance on inadmissible evidence, and failure to consider children's views and the maximum contact principle.

The court found fundamental procedural unfairness in the arbitration regarding parenting issues due to lack of proper notice on mobility, setting aside that part of the award.

The court upheld the financial issues award, finding no error of law in the arbitrator's imputation of income due to Mr. Petersoo's disclosure failings.

Leave to appeal the costs award was denied as it involved questions of fact, not law.

The parenting issues were remitted for a new arbitration before a different arbitrator, and interim parenting arrangements were ordered, increasing Mr. Petersoo's parenting time.

The respondent father brought a motion under Rule 1(8) of the Family Law Rules, alleging the applicant mother breached various custody and access orders and seeking an order for reunification therapy with their 17-year-old son.

The mother brought a cross-motion to dismiss.

The court applied the three-part test for relief under Rule 1(8) and found no breach by the mother on a balance of probabilities.

The court further held that even if a breach had occurred, it would not order reunification therapy given the child's age, his resistance to the process, and the risk of negatively impacting his relationship with the father.

The father's motion was dismissed.

Appeal from a trial judge's order resolving custody, access, support, and equalization issues following an 11-day trial.

The appellant challenged four issues: the award of sole custody to the respondent, the failure to apply the maximum contact principle, the equalization award regarding the valuation of a business interest, and the costs award.

The appellate court upheld the trial judge's findings on all issues, finding no reversible error and affirming the trial judge's discretionary decisions regarding custody arrangements and financial matters.