Warren W. Tobias

The respondent wife brought a motion for interim disbursements under r. 24(25) of the Family Law Rules to fund legal representation for a long motion and trial in a complex family law proceeding involving division of net family property and spousal support.

The parties had a decades-long marriage with business interests spanning Canada and Taiwan, and the case was complicated by the misappropriation of approximately $5.5 million in Taiwan land sale proceeds by an adult child.

The court granted $25,000 for the long motion, finding the respondent had demonstrated the disbursements were necessary and reasonable, that she was unable to fund the fees herself, and that her claims were meritorious.

The request for $220,000 for trial fees was dismissed without prejudice as the trial scope depended on the outcome of the long motion.

The applicant, the surviving spouse of the deceased, objected to the accounts submitted by the respondent, the deceased's granddaughter and power of attorney.

The core issue was whether the deceased was incapable of managing his property during the four and a half years prior to his death, which would trigger a strict duty to account under the Substitute Decisions Act.

The court found that the deceased retained capacity and had consented to the respondent's management of their joint bank account.

The court dismissed the applicant's objections, approved the accounts as submitted, and awarded costs to the respondent.

The Estate of Psarros brought an action against Lorraine Cook, the deceased's wife, concerning the disposition of their matrimonial home and the validity of a marriage contract.

Prior to their marriage, Psarros and Cook purchased a house as tenants in common.

Their marriage contract mistakenly stated they owned the house as joint tenants and included a release of Cook's claims under the Succession Law Reform Act (SLRA).

After Psarros died intestate, the Estate sought to sell its half-interest in the property to Cook, who initially agreed but later challenged the property's ownership structure and the validity of her SLRA release due to the contract's mistake.

The court found that the mistake in the marriage contract did not constitute an appropriate basis to set aside Cook's SLRA release under s. 56(4) of the Family Law Act, as she had not been under the impression she owned the entire house and the error did not extend to the SLRA release.

The court also determined that while the Estate was entitled to occupation rent, it was wholly offset by Cook's payment of the Estate's share of expenses.

The action was allowed, binding Cook to purchase the Estate's interest in the property based on the marriage contract's terms.

The applicant sought leave under s. 42(4)6 of the Substitute Decisions Act to require an attorney for property to pass her accounts in relation to the finances of an incapable person.

The court applied the test requiring a genuine interest in the incapable person’s welfare and a reasonable basis to believe a court might order the passing of accounts.

The court found serious concerns about the applicant’s relationship to the incapable person and concluded the evidence suggested the application was influenced by the incapable person’s spouse rather than the applicant’s independent concern.

The court also found no evidence of mismanagement, noting the incapable person’s needs were being adequately met and financial decisions were prudent.

Leave to bring the application was refused and substantial indemnity costs were awarded to the respondent.

Following a motion in a family law proceeding where the respondent successfully obtained an order referring the matter to mediation/arbitration and appointing a parenting coordinator, the court addressed the issue of costs.

The successful party sought $2,500 on a partial indemnity basis, but the notice of motion had requested only $1,500.

The court held that a costs award should not exceed the amount requested in the notice of motion.

Given that a pending arbitration would determine whether the successful party was in arrears, the court ordered costs of $1,500 payable only upon the arbitrator’s award or other resolution of the matter.

The plaintiff employer moved for default judgment against two former employee accountants alleged to have misappropriated corporate funds over several years.

Evidence from an internal investigation and a forensic consulting report established that the defendants conducted numerous fraudulent withdrawals and falsified accounting records.

The court held the pleadings and affidavit evidence established liability for conversion, fraud, and breach of fiduciary duty and granted judgment for proven losses totaling over $1.96 million, but declined to include certain suspicious transactions that could not be adequately traced to the defendants.

Punitive damages were awarded due to the deliberate and prolonged abuse of positions of trust, though the amount sought was reduced after considering the defendants’ gambling disorder evidence, ongoing criminal proceedings, and proportionality.

The court also awarded investigative costs and substantial indemnity legal costs.

The responding spouse brought a motion seeking a stay of court proceedings and an order requiring the parties to resolve outstanding parenting and child support issues through mediation and arbitration pursuant to their separation agreement.

The other spouse did not oppose the stay but sought costs for court proceedings she argued were unnecessary.

The court confirmed that the agreement required the dispute to proceed through mediation and arbitration and stayed the court proceedings accordingly.

The court declined to order additional costs, noting inaccuracies in the bill of costs, overlapping prior costs orders, and unreasonable conduct by the responding spouse in conditionally resisting arbitration despite the contractual dispute resolution clause.

Issues of further costs were left to the arbitrator.

The appellant husband appealed a trial judge's decision to strike his pleadings and preclude his participation at a family law trial, as well as the resulting corollary relief orders.

The trial judge struck the pleadings after finding the appellant committed egregious and continuing breaches of non-depletion and restraining orders, and failed to meet disclosure obligations.

The Court of Appeal dismissed the appeal, holding that the trial judge properly exercised his discretion to impose the severe sanction given the appellant's intransigence and the likelihood that his participation would only prolong the trial without advancing its truth-seeking purpose.

The Court also dismissed a motion to introduce fresh medical evidence and upheld the trial judge's substantive awards for equalization, child support, and spousal support.