Our Most Impressive Cases
Issue of Credibility
A. v. A.
2021 ONCA 602
The wife sought an unequal division of net family property and spousal support. Our client, the husband, sought child support. At trial, the parties presented widely different versions of the facts. The only thing they could agree on was that the case was primarily contingent upon findings of credibility. The first important legal finding in the case related to previous interim orders and credibility. Having had the benefit of examinations-in-chief and cross-examination of the parties and several other witnesses, the trial judge agreed with our submission that there is no jurisprudence which requires that a trial judge adopt the credibility rulings made on motions. The court also accepted the husband’s position in relation to various property issues, including allowing him to exclude the value of a condominium that had been transferred to him by his late father. The court also preferred the evidence of our client’s valuator in relation to the husband’s income and business interests.
The wife appealed the decision and sought to set aside the trial judge’s determinations of property and spousal support issues following a 21-day trial. As the case turned on various credibility issues, the Court of Appeal confirmed that the decision could only be overturned if there was a palpable and overriding error as the trial judge’s findings and credibility assessments are entitled to substantial deference. In the end, the panel dismissed the appeal finding that the wife was essentially seeking to retry the case on appeal. According to the appeal court, the trial judge had considered the wife’s theory that the husband had diverted funds, artificially inflated debts, and intentionally reduced his income and this theory was rejected after a careful review of the evidence. It is not the role of an appellate court to review each of the many factual determinations that were made by the trial judge. Costs of the appeal were fixed in the amount of $25,000 payable to the husband.
Recovery of Costs
This was a cost decision following an 8-day trial where we were successful in reducing and/or terminating the father’s child and spousal support obligations. As a result of the trial decision, our client had overpaid support to the wife in the amount of $165,892. As the father was the successful party at trial, the wife was ordered to pay our client costs in the amount of $120,000.
Recovery of Costs
After we successfully advocated for our client, the mother, to have the majority of parenting time, and the father's claim for shared residency was denied, the court ordered the father to pay to our client $92,640.00 in court costs.
Marriage Contract
G. v. S.
2021 ONCA 430
We acted for the wife on an application by the husband to set aside their Marriage Contract. Around the time of their marriage in 1991, the parties negotiated and executed a contract which provided that each party would release all rights and interests in property owned by the other, including the matrimonial home. The parties separated in January 2018. In July 2019, the home was sold for $4,070,000 and the husband claimed part of the proceeds. At trial, the court dismissed the husband’s application and enforced the terms of the original Marriage Contract. The decision was made on the basis that the husband had failed to show that he wife did not disclose significant assets or that he did not understand the contents of the contract. Critical to this finding was the fact that on cross-examination, the husband admitted that the property terms at issue were plain and unambiguous. The husband was also ordered to pay costs to the wife of $85,000. The husband appealed this decision to the Ontario Court of Appeal. His appeal was dismissed and he was ordered to pay further costs to the wife in the amount of $25,000.
Parenting and Financial Issues
We acted for the husband at a 10-day trial in relation to parenting and financial issues. After separation, the mother had sent harassing and vulgar text messages and e-mails to the father and the children and made inappropriate social media posts. As only one child was a minor at the time of trial and there was an order in place that required the child to spend equal time with each parent, we asked for the prior parenting order to be set aside. The court granted this relief given that the child was almost 18 and preferred to reside at the father’s home. In terms of the financial issues, the husband was ordered to pay support and the wife was ordered to make an equalization payment to the husband of more than $450,000 as the court concluded that the significant debt owing by the husband to his company was bona fide and should be a valuation day deduction in calculating the husband’s net family property.
Parenting Order
We acted for the mother on this appeal, which was heard by a panel of the Divisional Court. This was an important case as it clarified the legal test for varying a final parenting order on an interim basis. At the initial motion, the judge made a temporary order that significantly changed the parenting schedule for a 13-year old child. The existing parenting schedule had been established by way of a final order made in 2017. Critical to the motion judge’s decision was his application of a lower threshold for variation due to the fact that the parties’ Separation Agreement permitted a “review” of the parenting schedule without the need to prove a material change in circumstances. The Divisional Court ultimately reversed the lower court’s decision and maintained the existing parenting schedule for the child pending trial. In so doing, the Divisional Court emphasized that a motion brought within a review proceeding must be distinguished from the actual hearing of the claim. On a motion, the court must maintain the status quo for a child in the absence of compelling reasons requiring an immediate change. This is an exceptionally important principle in family law cases. Said differently, on an interim motion to vary a final parenting order, the onus will be on the party seeking the change to establish that the existing order results in an intolerable situation, jeopardizing the child’s physical and/or emotional well-being. If this high threshold is not met, the status quo will typically be maintained pending trial.
Striking of Pleadings
On the eve of trial, the husband had still not complied with various court orders for costs and disclosure. As a result, on behalf of the wife, we brought a motion returnable at the commencement of trial to strike the husband’s pleadings. Importantly, the court agreed with previous decisions which questioned the degree to which striking of pleadings should still be reserved for drastic and extreme cases. Instead, the case law calls for a culture shift to enhance access to justice by promoting efficiency, affordability, and proportionality. According to the motion’s judge, it was clear on the evidence that the husband’s ill-explained defaults in complying with court orders were wilful. The judge also made it clear that claimed impecuniosity is not a defence to an application to strike pleadings based on a failure to honour court orders. While ability to pay may be relevant in submissions offered at the time the order is made, it is not relevant when non-compliance is the issue. Ultimately, the husband’s pleadings were struck and the trial proceeded on an uncontested basis.
The husband’s appeal of the order striking his pleadings was dismissed by the Court of Appeal. In upholding the motion judge’s decision, the court confirmed that the judge had cited and applied the correct legal test and did not lower the threshold as asserted by the husband. While he recognized that striking pleadings was a remedy of last resort, the trial judge carefully considered the evidence with respect to the husband’s defaults, which were significant and wilful. Specifically, the argument that the husband had an excuse for his non-compliance with outstanding costs orders was properly rejected by the trial judge as it had already been determined that the husband had the ability to pay costs when each of the four judges who had previously made such orders rejected the husband’s claims of impecuniosity. In addition, the striking of pleadings was a proportionate response to the husband’s defaults as one of the outstanding orders was for interim costs and disbursements to ensure that the wife had sufficient funds to proceed with the matrimonial trial. By failing to pay these costs, the husband’s default prejudiced her ability to proceed with the litigation. This was important as it would have been unfair to allow the husband to proceed to trial when the wife could not pay her own lawyers due to the husband’s non-compliance.
Uncontested Trial
In this case, the husband appealed an order that we had obtained on motion striking his pleadings on the basis of his failure to comply with orders for disclosure. The Court of Appeal upheld the order made by the motions judge and dismissed the appeal with costs payable to our client in the amount of $7,500. As a result, the case proceeded to an uncontested trial.
Payer Not Allowed to Participate at Trial
The payor father had stopped participating in the court case and had stopped spousal and child support. At the start of trial, the judge was satisfied that the payor father should not be allowed to participate, lead evidence, or make submissions during trial. Although the payor father was allowed to observe the trial, it proceeded without him and the judge heard and relied on the recipient mother's evidence alone.
Decision-Making Responsibility and Parenting Time
Unfortunately, sometimes clients have serious concerns about the wellbeing of their children in the other’s care. In this case, a history of abuse led the mother to request access take place in a supervised access center and be restricted to a limited time each week. Her concerns were found to be warranted and the judge ordered limited access under supervision.
Client Keeps Sole Custody
After a lengthy trial, our client was awarded sole custody, support on an imputed income, and costs. Her former husband appealed, and his appeal was denied. Our client received costs of $15,000.00 from the Court of Appeal as she was entirely successful on the appeal.
Awarded Sole Custody and Primary Care
After the end of a long trial, our client successfully won sole custody and primary residence of her young daughter. We successfully had the father imputed with an income much higher than what he claimed he was earning at the time of trial, and he was ordered to pay child support to the mother retroactively to the date of separation.
Parental Alienation
In this very troubled family, the children began to resist contact with their mother due to the father's alienating conduct. Over time, the mother was able to have the children's contact with their father restricted, and to ensure that they weren't dragged into the middle of the ongoing court battle. Because her position was principled and protective, the mother was able to receive her costs for portions of the proceeding.
Summary Judgment Motion
Sometimes it’s possible to have a win-win outcome by shortening time in court and recovering costs. In this case, our client was “entirely successful” on her motion for summary judgment. The father misled the court by inaccurately representing his income and remained in substantial arrears of child support. The court awarded our client full recovery of her costs and enforced the costs order as if it were a support order enforceable by the Family Responsibility Office.
Child and Spousal Support
When the father didn't pay his equalization or costs, or any support, and then tried to have his arrears reduced, we asked the court to throw his case out, and were successful. The father appealed, and we were successful in having his appeal dismissed.
Breadwinner Need Not Pay Spousal Support
Spousal support awards are discretionary. Sometimes, even when there has been a history of financial dependency, parents and spouses need to be able to move on. In this case, our client had been the primary breadwinner for the duration of the marriage but the judge found that the husband was capable of becoming self-sufficient and both parties would benefit from a clean financial break. The judge did not order periodic support.
Sperm Donor Need Not Pay Child Support
Our client donated his sperm to a friend and a baby was born. After a falling out, she sued him for child support. We successfully argued that our client was not the child's legal parent, despite being the biological parent, and despite the fact that the child was conceived using sexual intercourse. Novel legislation was interpreted in our client's favour.
Payor Required to Disclose Income
Sometimes people try to avoid paying support by hiding money, disguising how much their companies and other assets are worth, or by refusing to provide disclosure. In this case, the wealthy father payor did not want to provide his income information, and made a number of complicated legal arguments to try to avoid his child support obligations. We were successful in having the court order him to provide his income information and our client was awarded almost all of her legal fees as a result.
Child Support
We acted for the mother who brought a Motion to Change the child support terms of a Separation Agreement that was signed in 2009 based on a material change in circumstances. At trial, the court had to decide how their two girls’ post-secondary expenses would be shared. Complicating the issue was the fact that the parties had established two separate RESPs and had not strictly followed the RESP allocation terms set out in their original Separation Agreement. Our client wanted the court to order that the money each parent saved in their respective RESPs should be applied to defray their respective shares of the university expenses. On the other hand, despite the fact that the majority of the RESP contributions were made by the mother post-separation, the father wanted the court to apply a literal interpretation of the Separation Agreement so that all of the RESP funds would be applied first and only then would any uncovered expenses be apportioned between the parties. This result would have essentially penalized the mother for having been prudent in saving for the children’s education. In the end, the court found that circumstances had occurred that were not contemplated by the parties at the time of the Separation Agreement and varied the child support terms as requested by the mother to give effect to the spirit, as opposed to the literal terms, of their original settlement. The court also made an important finding about the nature of RESPs, namely that an RESP is not a section 7 expense and therefore, absent an agreement, parties cannot be compelled to contribute to one.
Piercing of the Corporate Veil
Client Awarded Over $60,000 in Child Support: K. v. D.
2011 ONSC 7560
Piercing the corporate veil is a notoriously difficult task but sometimes it is the only way to establish an accurate picture of income. In this case, a number of corporate entities were found to be the payor’s “alter ego” which the husband was using to frustrate his obligations to our client. After hearing considerable evidence, the judge decided to pierce the corporate veil and awarded the wife over $60,000 in child support arrears, as well as substantial costs and interest on costs.
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