Stephen P. Kirby

On appeal from a Superior Court decision, the mother challenged the appeal judge's order upholding an extended society care order and varying her access status from access recipient to access holder.

The mother argued that the appeal judge should have ordered a new trial on all issues due to a finding of procedural unfairness regarding the access holder determination.

The Court of Appeal dismissed the appeal, holding that a breach of procedural fairness on a discrete issue does not require a new trial on all matters when the appellate court can properly decide the issue based on the evidentiary record.

The court admitted fresh evidence but found it did not change the outcome, as the evidence supported the extended society care order.

The Court of Appeal for Ontario dismissed Kirk Richard Iredale’s appeal from the Superior Court’s order regarding equalization of assets and spousal support following the breakdown of his marriage to Carol Jeanette Dougall.

The court held that the trial judge properly found the equalization payment remedied any unjust enrichment and that a time-limited spousal support award was appropriate.

The court also upheld the trial judge’s refusal to admit fresh evidence post-trial.

The Court of Appeal for Ontario dismissed the appeal of Berge Marcarian from the trial judge’s determination of the date of separation in his marriage to Karen Nairi Kassabian.

The trial judge found the date of separation to be May 16, 2021, as asserted by the wife, rather than December 10, 2014, as claimed by the husband.

The appellate court held that the trial judge made no palpable and overriding error in her factual findings or application of the law, and that her reasons were sufficient.

The decision provides a comprehensive review of the legal principles and factors relevant to determining the date of separation in family law, emphasizing the objective, fact-driven nature of the analysis and the high deference owed to trial judges on such determinations.

The court issued a correcting endorsement to its previous judgment (2023 ONSC 5368) regarding spousal support arrears.

The respondent sought to "net down" the lump sum retroactive spousal support payment to account for the lack of tax deductibility, which would have been available had payments been made on time.

The applicant opposed this.

The court, exercising its discretion, granted the respondent's request to net down the arrears, amending the total retroactive support payable to reflect the notional tax deduction.

The court declined to award pre-judgment interest as it was not claimed by the applicant.

The father sought an order finding the mother in breach of a consent order regarding their child's Shia Ismaili religious upbringing, specifically weekly religious education classes.

The mother argued the order did not contemplate weekly interference with her parenting time and that the father had not made reasonable efforts to schedule classes during his time.

The court dismissed the father's motion, finding the mother was not in breach, as the order did not require her to give up every Saturday morning of her parenting time for religious education.

The court provided guidance on interpreting the order, emphasizing mutual support for the child's religious upbringing and the father's primary responsibility to schedule events during his parenting time.

The respondent in an appeal sought to dismiss the appeal under Rule 2.1.01(1) of the Rules of Civil Procedure, arguing that the appellant's conduct in related lower court custody proceedings, including removing children from the jurisdiction in defiance of court orders, constituted an abuse of process.

The Court of Appeal dismissed the motion, holding that while the appellant's conduct in the Superior Court was problematic, it did not amount to an abuse of process in the context of the appeal itself.

The court clarified that Rule 2.1 is not intended to address issues of non-compliance with lower court orders unless such conduct directly abuses the appellate process.

The appellant, a third-party creditor (2401242 Ontario Inc.), appealed an order releasing the wife's share of matrimonial home sale proceeds.

The appellant had obtained a default judgment and filed a writ against the husband, arguing priority over the wife's interest in the jointly held matrimonial home.

The Court of Appeal dismissed the appeal, holding that a creditor cannot seize the interest of a non-debtor joint tenant.

The court clarified that under Ontario's Execution Act, a writ only binds the debtor's exigible interest in jointly held land, not the entire property, and therefore the wife was entitled to her half-share of the proceeds.

The applicant wife brought a motion seeking $250,000 for interim disbursements and a $500,000 advance on an equalization payment.

The respondent husband opposed, arguing abuse of process and inability to pay, and objected to the wife's hearsay evidence regarding his asset values.

The court found no abuse of process, noting the husband's significant delay in providing financial disclosure.

The court awarded the wife $75,000 for interim disbursements and $50,000 as an advance on equalization, adjourning the remainder of the motion to allow the husband to provide outstanding disclosure, failing which an adverse inference would be drawn.

This appeal addresses whether Canadian law recognizes an Islamic bare talaq divorce, performed in Ontario and subsequently registered with Egyptian governmental agencies.

The Court of Appeal found that the motion judge erred in recognizing the divorce under s. 22(3) of the Divorce Act.

The Court clarified that administrative registration of a divorce does not equate to the "granting" of a divorce by a competent authority, as required by the Act.

Furthermore, the Court held that the parties lacked a real and substantial connection to Egypt at the time of the divorce, and that recognizing such a divorce would be contrary to Canadian public policy, particularly due to its unilateral nature and the potential for forum shopping.

The appeal was allowed, setting aside the lower court's order and allowing the appellant's spousal support claim to proceed.

The applicant mother brought a motion for a stay of a lower court order that directed the return of the parties' child to Milton and established Milton as the proper venue for their family law proceedings.

The Court of Appeal dismissed the motion for a stay, finding that the appeal did not raise a serious issue because the underlying order was interlocutory, and the mother failed to demonstrate irreparable harm to the child's best interests.

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.

This is an appeal from an order granting primary residence of the parties' child to the respondent mother.

The appellant father argued the trial judge erred by not considering the impact of relocation on parenting time, failing to apply mandatory Divorce Act provisions regarding relocation, and presumptively basing the decision on the mother being the primary caregiver.

The Court of Appeal found no reviewable error, affirming that the trial judge properly considered the child's best interests, including the impact of relocation, and that the appellant was not prejudiced by any notice defect.

The appeal was dismissed.

The appellant wife appealed a summary judgment dismissing her application for equalization and spousal support, brought over a decade after their divorce.

She alleged the respondent husband misrepresented his financial position during their divorce negotiations, claiming $0 net worth while bank disclosures showed $21 million.

The Court of Appeal found the motion judge erred by: 1) allowing the summary judgment motion without the respondent filing a required answer and financial statement, which is crucial for financial disclosure in family law; and 2) misinterpreting the test for extending limitation periods under s. 2(8) of the Family Law Act, by requiring "established fraud" instead of the lower threshold of "apparent grounds for relief" and "good faith" delay.

The court emphasized the paramount importance of financial disclosure in family law proceedings.

The appellant appealed the dismissal of her motion to dismiss the respondent's application for matrimonial relief on jurisdictional grounds, arguing Ontario lacked jurisdiction or China was the more appropriate forum.

The motion judge found Ontario had jurisdiction but that China was not the clearly more appropriate forum.

The Court of Appeal upheld the finding of jurisdiction but found the motion judge erred in the forum non conveniens analysis by failing to adequately consider pre-existing marital agreements executed in China and overemphasizing the Ontario property.

The appeal was allowed, and the respondent's application was stayed, directing the matter to China.

This is a costs endorsement following an appeal where the respondent, Bruce Boudreau, was entirely successful in opposing the appellant Randi Jakobsen's appeal.

The court ordered Ms. Jakobsen to pay Mr. Boudreau his costs of the appeal, fixed at $14,000, inclusive of disbursements and applicable taxes.

The appellant appealed a trial judge's order requiring her to pay spousal support to the respondent, whom the trial judge found was her common-law spouse.

The Court of Appeal upheld the trial judge's finding that the parties were spouses under the Family Law Act, despite the trial judge's erroneous reference to the Divorce Act criteria for spousal support.

The court found this error not material due to significant overlap in statutory criteria and ample evidence supporting the respondent's economic dependence.

The appeal regarding spousal support and trial costs was dismissed.

The appellant husband appealed an order for spousal and child support and equalization of property.

The appeal focused on the imputation of income to the appellant under s. 19 of the Federal Child Support Guidelines and the valuation of his business, VAMS Canada Inc. The Court of Appeal dismissed the appeal, finding no reversible error in the trial judge's credibility assessment, income imputation based on the respondent's expert evidence and the appellant's lack of disclosure, or the valuation of the business, including the treatment of shareholder loans and the use of different valuation methodologies.

The appellant, David Joseph Lesko, appealed three aspects of a divorce order: an equalization payment to the respondent, Kelly Sue Lesko, based on her 50% interest in a pre-marriage property due to unjust enrichment; the determination of his income for support purposes; and the disallowance of his claim for credit against retroactive support for post-separation expenses.

The Court of Appeal dismissed the appeal on all grounds, upholding the trial judge's findings regarding unjust enrichment, income calculation, and the discretion to deny the appellant's late-claimed expenses.

This is an appeal from a trial decision in a high-conflict matrimonial litigation case where the respondent's pleadings were struck due to willful non-compliance with disclosure orders.

The appellant challenged the trial judge's approach to evidence, refusal to recognize a constructive trust, spousal support determination, denial of a vesting order, and the costs award.

The Court of Appeal dismissed the appeal on all grounds, affirming the trial judge's discretion in probing evidence even in an uncontested trial, applying the net family property scheme, and exercising discretion regarding support, vesting orders, and costs.

The court also reaffirmed the principle that a party in willful default of court orders may be denied audience on appeal.

The appellant wife appealed a trial decision concerning the division of net family property and claims for spousal and child support following a five-year marriage.

The appeal raised issues regarding the beneficial ownership of properties, the application of resulting trust principles, the deductibility of alleged loans from family members, and the dismissal of support claims.

The Court of Appeal found no errors of law or palpable and overriding errors in the trial judge's findings of fact or application of legal principles, noting that the trial judge's conclusions were well-grounded in the evidence and clearly explained.

The appeal was dismissed.