Trevor Smith

The respondent father brought a motion seeking a declaratory order that the Ontario Superior Court of Justice has jurisdiction to make parenting orders regarding two children.

The father argued that the children would suffer serious harm if returned to Iran due to the Israel-Iran conflict and other factors.

The applicant mother opposed the motion, arguing that the children's habitual residence is Iran and that Iran has jurisdiction over parenting matters.

The court found that the children would not suffer serious harm if returned to Iran on a balance of probabilities and declined Ontario's jurisdiction, dismissing the father's motion.

This is a costs endorsement following a partial summary judgment motion where the applicant sought to dismiss the respondent's spousal support claims, arguing the parties were not "spouses" under the Family Law Act.

The court dismissed the applicant's motion, finding the cohabitation issue too complex for summary judgment.

The respondent, as the successful party, sought full indemnity costs of $89,561.88 or partial indemnity costs of $58,390.39.

The applicant sought to defer costs or fix them at $30,000.

The court, applying the principles of proportionality and reasonableness under the Family Law Rules, found the applicant's conduct not unreasonable for bringing the motion but reduced the respondent's claimed costs by excluding time for case conferences and questioning that would be useful at trial.

The court awarded the respondent $50,000 in costs.

The applicant, Raymond Reichert, brought a motion for partial summary judgment to dismiss the respondent's, Tamara Ann Bandola's, claims for spousal support.

The central issue was whether the parties qualified as "spouses" under s.29 of the Family Law Act, which requires continuous cohabitation for three years or more.

The court dismissed the motion, finding that the determination of cohabitation involved complex facts and credibility issues.

The judge concluded that granting partial summary judgment would risk inconsistent findings with other intermingled claims, such as unjust enrichment and tort claims, which rely on the same factual matrix.

The court emphasized that hiving off this issue would not be more efficient and that a full trial with viva voce evidence was necessary to justly resolve the dispute.

The appellant father appealed an arbitration award that ordered the parties' two children to attend a public school rather than a private Montessori school for the 2020/2021 academic year.

The arbitrator had considered factors including proximity, class size, and community ties.

The appellant argued the arbitrator erred in law by overemphasizing proximity, and made factual errors regarding travel times.

The court admitted fresh evidence from both parties but ultimately found no errors of law, palpable and overriding errors of fact, or errors of mixed fact and law in the arbitrator's exercise of discretion.

The appeal was dismissed, with the court noting that changing schools so late in the academic year during the COVID-19 pandemic would not be in the children's best interests regardless.

The applicant sought leave to introduce fresh evidence on an appeal of an arbitration decision concerning the children's school.

The fresh evidence pertained to the applicant's acquisition of the proposed private school, his daily presence there, and the school's operational status during the pandemic.

The respondent opposed the admission of this evidence.

The court applied the flexible fresh evidence test applicable in family law cases involving children's welfare and granted the motion, finding the evidence was new, credible, and potentially relevant to the appeal's outcome, particularly given the original arbitration was a close call.

Following a family law trial regarding the equalization of net family properties, the applicant sought costs on a full or substantial indemnity basis.

The respondent argued the costs sought were excessive and that certain pre-trial steps should not be included.

The court reviewed the parties' offers to settle and found the applicant beat her November 2018 offer.

The court awarded the applicant partial indemnity costs for the period prior to the offer and full indemnity costs thereafter, fixing the total costs award at $32,732.72.

The parties resolved all issues except the equalization of their net family properties, specifically the valuation of their respective federal public service pensions.

The court determined that the applicant's pension value must include all pensionable service for which she elected to repay contributions for leaves without pay.

The court also found that the applicant's survivor benefit should not be included in her net family property as it would be lost upon divorce.

For the respondent's pension, the court used age 60 as the reasonable retirement age based on his pre-separation intentions and declined to deduct a contingent survivor benefit.

The respondent was ordered to pay an equalization payment of $563,560.23 with pre-judgment interest.

The applicant sought an order for substituted service to serve an Application for Divorce on the respondent in India by email and regular mail.

The court granted the order, confirming that an Ontario lawyer is a "judicial officer" under Article 3 of the Hague Service Convention, allowing direct transmission of service requests to a destination state's Central Authority.

Given India's Central Authority failed to respond within six months, the conditions under Article 15 of the Convention were met, permitting the court to proceed with steps towards judgment, including substituted service.

The proposed methods of service were deemed reasonably likely to bring the document to the respondent's attention.