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The Court of Appeal for Ontario dismissed a motion to extend time to appeal, finding the delay and the appellant’s litigation conduct made relief contrary to the interests of justice.
The Court of Appeal corrected a $4,250 arithmetic error in equalization, but otherwise dismissed the appeal on tracing, RESP treatment, matrimonial home, and costs issues.
Ontario Court of Appeal partly allowed a family law appeal, correcting a post-separation credit calculation, while upholding the trial judge on equalization, spousal support, and most other issues.
Court declined to grant directions recharacterizing post-separation adjustments as support because no authority and procedural barrier (failed to re-attend trial judge); concluded there was a serious risk respondent would not pay the post-separation adjustments and that applicant could provide security, and that the appeal had arguable merit, and accordingly exercised discretion under r.63.01(5) to lift the stay on respondent’s obligation to pay $2,240,544.56 on terms requiring applicant to pay the net difference of $584,486.45 within seven days and expedited the appeal.
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The appeal was allowed in part: the Court of Appeal upheld the trial judge's factual finding that the appellant retained the precious metals but corrected arithmetic errors in the post‑separation adjustment calculation, holding the appropriate adjustment is one half of the metals value ($157,472.50) and varying the trial order to substitute the corrected adjusted equalization payment ($168,282.39) and corrected net payment after deductions ($145,584.85); the late motion for injunction and security for costs was dismissed and there was no costs order.
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The appeal is dismissed because the trial judge did not err in refusing the adjournment, reasonably assessed the appellant's education and earning capacity, correctly declined to impute daycare income to the respondent based on the evidence and living circumstances, properly calculated support and equalization, and there is no basis to order a new trial for alleged additional evidence.
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Appeal dismissed: trial judge's factual findings that respondent contributed to joint accounts, paid support, and that appellant failed to prove unconscionability under s.5(6) were open on the record; RRSP and reimbursement claims could not be raised as new proprietary remedies on appeal and would improperly circumvent the Family Law Act scheme; retroactive child and spousal support denied after holistic assessment of payments, delay, conduct and hardship showed no entitlement to arrears.
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