Court Of Appeal Summaries (July 10 ' 14, 2023)

• Published date: 18 July 2023
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Family and Matrimonial, Retirement, Superannuation & Pensions, Family Law, Court Procedure, Divorce, Wills/ Intestacy/ Estate Planning
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good evening.

Following are this week's summaries of the civil decisions of the Court of Appeal for Ontario for the week of July 10, 2023.

There were only two substantive decisions released this week, both family law decisions dealing with spousal support.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferreira
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Jasiobedzki v Jasiobedzka, 2023 ONCA 482

Keywords: Family Law, Spousal Support, Civil Procedure, Fresh Evidence, Costs, Barendregt v. Grebliunas, 2022 SCC 22, Van de Perre v. Edwards, 2001 SCC 60, Hickey. v. Hickey, [1999] 2 S.C.R. 518, Calin v. Calin, 2021 ONCA 558, Green v. Green, 2015 ONCA 541, Trez Capital Limited Partnership v. Bernstein, 2018 ONCA 107, Drywall Acoustic Lathing and Insulation, Local 675 Pension Fund (Trustees of) v. SNC-Lavalin Group Inc., 2015 ONCA 718, MacKinnon v. Ontario (Municipal Employees Retirement Board), 2007 ONCA 874, Korman v. Korman, 2015 ONCA 578, Levin v. Levin, 2020 ONCA 604, Kerr v. Baranow, 2011 SCC 10, D.B.S. v. S.R.G., 2006 SCC 37, Higgins v. Higgins (2001), 19 R.F.L. (5th) 300 (Ont. S.C.), Griffiths v. Zambosco (2001), 54 O.R. (3d) 397 (C.A.), Fielding v. Fielding, 2015 ONCA 901, Palmer v. The Queen, [1980] 1 S.C.R. 759, R. v. Truscott, 2007 ONCA 575, Frazer v. Haukioja, 2010 ONCA 249, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9

Nairne v Nairne, 2023 ONCA 478

Keywords: Family Law, Spousal Support, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 15.2, Family Law Act, R.S.O. 1990, c. F.3, ss. 33(8), Hickey v. Hickey, [1999] 2 S.C.R. 518, Fletcher v. Manitoba Public Insurance Corp., [1990] 3 S.C.R. 191, Moge v. Moge, [1992] 3 S.C.R. 813, Bracklow v. Bracklow, [1999] 1 S.C.R. 420

Short Civil Decisions

Grady v Grady, 2023 ONCA 481

Keywords: Wills and Estates, Testamentary Disposition, Matrimonial Home, Rules of Civil Procedure, rr. 1.04(1) and 1.04(1.1), Hryniak v Mauldin, 2014 SCC 7, Hansen Estate v Hansen, 2012 ONCA 112, Re McKee and National Trust Co. Ltd. et al. (1975), 7 O.R. (2d) 614

9383859 Canada Ltd. v Saeed, 2023 ONCA 484

Keywords: Costs

CIVIL DECISIONS

Jasiobedzki v Jasiobedzka, 2023 ONCA 482

Miller, Paciocco and Coroza JJ.A

Counsel:

P. J., acting in person as the appellant

J. Bruggeman, for the respondent

Keywords: Family Law, Spousal Support, Civil Procedure, Fresh Evidence, Costs, Barendregt v. Grebliunas, 2022 SCC 22, Van de Perre v. Edwards, 2001 SCC 60, Hickey. v. Hickey, [1999] 2 S.C.R. 518, Calin v. Calin, 2021 ONCA 558, Green v. Green, 2015 ONCA 541, Trez Capital Limited Partnership v. Bernstein, 2018 ONCA 107, Drywall Acoustic Lathing and Insulation, Local 675 Pension Fund (Trustees of) v. SNC-Lavalin Group Inc., 2015 ONCA 718, MacKinnon v. Ontario (Municipal Employees Retirement Board), 2007 ONCA 874, Korman v. Korman, 2015 ONCA 578, Levin v. Levin, 2020 ONCA 604, Kerr v. Baranow, 2011 SCC 10, D.B.S. v. S.R.G., 2006 SCC 37, Higgins v. Higgins (2001), 19 R.F.L. (5th) 300 (Ont. S.C.), Griffiths v. Zambosco (2001), 54 O.R. (3d) 397 (C.A.), Fielding v. Fielding, 2015 ONCA 901, Palmer v. The Queen, [1980] 1 S.C.R. 759, R. v. Truscott, 2007 ONCA 575, Frazer v. Haukioja, 2010 ONCA 249, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9

facts:

The appellant, the husband, challenged two spousal support orders made after trial. The first order made on March 24, 2022, found the appellant liable to pay the respondent three heads of support. First, ongoing support, effective March 31, 2022, of, $5,979 per month. Second, a lump-sum "catch-up amount" for a shortfall in the support he had paid between January 7, 2020 and March 31, 2022. Third, "retroactive support" from the fall of 2017.

The trial judge issued a second order on September 9, 2022 setting the lump-sum catch-up amount at $36,433, with a retroactive support date of November 1, 2017, and set the amount of the retroactive support at $86,108. Costs were payable to the wife in the amount of $30,000.

issues:

1. Did the trial judge make clerical and factual errors that require correction in the trial judge's endorsements?
2. Did the trial judge err in calculating mid-range spousal support, when quantifying the ongoing support?
3. Did the trial judge err by not imputing income to the wife?
4. Did the trial judge err in calculating retroactive support by setting a start date of November 1, 2017?
5. Did the trial judge err in calculating retroactive support by not awarding occupation rent?
6. Did the trial judge err in calculating the retroactive support?
7. Did the trial judge err in quantifying the lump sum catch-up amount?
8. Should...