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The Court of Appeal for Ontario dismissed a motion to set aside the refusal of a further extension of time to perfect an appeal, finding no reviewable error.
Ontario Court of Appeal allowed the appeal in part, set aside the trial judge’s wholesale use of s. 56(4), and modified spousal support under Miglin.
The court held that Manjit Rai’s registered interest in a Surrey home was held on resulting trust for the plaintiffs, or alternatively under a constructive trust.
Costs decision in a family appeal: the Court of Appeal held the successful mother was entitled to costs, and fixed them at $80,000 in total.
The stay was denied because the mother's proposed appeal did not raise a serious issue meeting the Supreme Court leave threshold, she failed to establish irreparable harm and the balance of convenience favored return to the child's habitual residence in the U.K.; the Court confirmed and incorporated the father's undertakings into the return order and held the Superior Court interim-interim order moot.
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The motion judge's findings that a material change occurred, that the child lived primarily with the respondent in the relevant periods, that the respondent's income for support purposes should be varied to the specified amounts, and that the respondent was entitled to credit for payments toward the matrimonial home were open on the evidence and free of palpable and overriding error; fresh evidence was unnecessary and the appeal is dismissed with costs.
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Because the appeal was dismissed, the Court ordered the appellant to pay the respondent's costs of the appeal in the amount claimed: $9,200 inclusive of HST and disbursements.
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The appeal was dismissed but was not frivolous and there was no misconduct by respondent or counsel; therefore costs were properly awarded on a partial indemnity basis in the fixed amount of $7,500 inclusive of disbursements and H.S.T.
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Because the wife was more successful overall and had documented her costs, the appellate court exercised its discretion to award costs to her in the amount of $10,000 payable by the husband.
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The court rejected imputing income to the wife based on her demonstrated efforts and accepted her disclosed income; calculated prospective and historic child support using the father’s actual disclosed tax returns and the Guidelines; awarded retroactive support because the father acted blameworthily by failing to disclose income as required, prejudicing the child; and dismissed the father's request to terminate spousal support because the wife retained entitlements to compensatory and non-compensatory support and the father could afford the agreed ongoing support of $878/month, with arrears o…
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