Reported Court Decisions

Hess v. Hamilton

2018 – Ontario Superior Court of Justice

In this case, Ms. Hess sought increased retroactive and prospective child and spousal support from our client, Mr. Hamilton, as well as his contribution to the cost of medical school in the Caribbean. This was a complicated case that involved many legal issues, including but not limited to post-separation increases in income.

Andrea and Lisa successfully represented Mr. Hamilton, and Ms. Hess’ claims for retroactive variation of both child and spousal support, for contribution to the child’s medical school costs and for increased spousal support were dismissed.

In the decision dated January 28, 2018, the Honourable Justice Faieta made orders regarding prospective child support and section 7 expenses for one of the children. However, Andrea and Lisa successfully sought to correct that aspect of the decision and on November 5, 2018, the Honourable Justice Faieta acknowledged that there had been a mistake and he deleted the provisions in his previous order concerning ongoing child support and section 7 expense contributions. Justice Faieta also made an order for substantial costs in Mr. Hamilton’s favour.

Case Facts

  • 2018 – Ontario Superior Court of Justice
  • This was a complex case with many legal issues
  • Our client had claims against him for child support, medical school costs and increased spousal support dismissed
  • We obtained a substantial cost award in our client’s favour

Chan v. Town

2013 – Ontario Superior Court of Justice
2014 – Court of Appeal for Ontario

In this decision out of the Court of Appeal for Ontario, Lisa along with senior co-counsel successfully appealed the order of the Honourable Justice Skarica dated March 20, 2013, on behalf of their client, Ms. Chan.

Justice Skarica had found the mother, Ms. Chan, to be in contempt of a final order dealing with custody and access. As a remedy for the contempt, Justice Skarica ordered a change in custody (from joint custody to sole custody for the father) and a reversal of the parenting schedule so that the father had primary residence instead of the mother.

Prior to the hearing of the appeal, Lisa brought a motion on Ms. Chan’s behalf before the Court of Appeal for Ontario and successfully obtained a stay of the Order of Justice Skarica, which otherwise would have taken immediate effect.

On the appeal, Lisa and her co-counsel provided evidence of the numerous errors that had been made by the Judge of the Superior Court of Justice. The Court of Appeal for Ontario allowed the appeal and set aside the contempt order and remedy. The Court also awarded Ms. Chan costs for both the motion and for the appeal.

Case Facts

  • 2013 – Ontario Superior Court of Justice
  • 2014 – Court of Appeal for Ontario
  • The Judge originally ordered reversal of the parenting status quo (giving the other party sole custody)
  • We brought a motion in the Ontario Court of Appeal staying (i.e. temporarily stopping) the Order
  • We successfully appealed the Order in the Ontario Court of Appeal on behalf of the mother
  • We obtained a cost award for our client for both the motion and the appeal

Atout v. Atout

2016 – Ontario Superior Court of Justice

In this case, our client, Ms. Atout sought interim decision making (custody) of the children. Mr. Atout asked that the children be returned to Arizona on the basis that the Ontario Court did not have jurisdiction (or authority) to make a decision regarding the children. The issues of jurisdiction and what custody arrangement was in the children’s best interests was before the Court at the Motion.

The details of the case were quite complex and involved addressing whether the Arizona Court, the Court in Qatar, or the Ontario Court had the ability to hear the matter and make an order with respect to the children. At the time of the decision, the children had recently moved to Ontario with Ms. Atout after previously residing in Qatar and briefly visiting Ms. Atout’s family in Arizona. Mr. Atout had claimed that the children were kidnapped by Ms. Atout and taken to Ontario without his consent.

Alexandrea was representing the mother, Ms. Atout, who wanted to remain in Ontario with the children. Ms. Atout required a custody order to obtain the children’s documentation in Ontario, as well as to enroll them in school. Alexandrea was successful in arguing that the Ontario Court should have the ability to make a decision that was in the children’s best interest. Ms. Atout was successful in obtaining interim decision making for the children, as well as being permitted to remain in Ontario with the children.

In the matter relating to costs following the aforementioned decision,  Ms. Atout, who was represented by Alexandrea, had succeeded on all of the issues that she had asked the Court to determine at the motion. She wanted to recoup the legal fees she had incurred with respect to the Motion. The Court determined that Ms. Atout was the successful party at the Motion and ordered that Mr. Atout pay her costs of the Motion in full. 

Case Facts

  • 2016 – Ontario Superior Court of Justice
  • We successfully represented a mother seeking custody of her children in a case with a complex jurisdiction scenario
  • Full costs were awarded in favour of the mother

M.B. v. D.T.

2012 – Ontario Superior Court of Justice

In this case, Alexandrea was representing the mother of three young children. The mother sought custody of the children, as well as a parenting plan that she believed to be in the children’s best interests. The matter ended up in a three-day trial.

Prior to trial, the parties were engaged in a nesting arrangement whereby the party who had care of the children for a given week would move into the home and the other would move out. This arrangement had been in place for about a year and was no longer working.

In the months leading up to trial, the Office of the Children’s Lawyer (who represented the children and their interests) completed a report which recommended that the parties have joint decision-making regarding the children. The mother did not agree with this recommendation given the high level of conflict between the parties.
After considering the evidence, the Court agreed with the mother that both parties jointly making decisions for the children was not possible. As such, though the parties were granted joint custody, the Court ordered that the mother have final say on health and educational issues if the parties were not able to jointly make a decision in the children’s best interest.

With respect to the parenting schedule, both of the parties agreed that the other should have regular and frequent time with the children, but the schedule proposed at trial differed between them. The Court ordered a parenting schedule in accordance with the one proposed by the mother at trial.

Case Facts

  • 2012 – Ontario Superior Court of Justice
  • We achieved a favourable outcome for a mother who achieved joint custody of her children while being granted final decision-making on health and educational issues
  • We successfully represented the mother in achieving her preferred parenting schedule

Almeida v. Malek-Gilani

2019 – Ontario Superior Court of Justice

Efua successfully defended Mr. Malek-Gilani against a claim by Ms. Almeida to enforce the terms of an order for contribution to the children’s post-secondary expenses.

Efua was able to obtain the variation of a temporary order for special expenses (post-secondary expenses) for adult children in a complex case involving parties residing in Canada, Iran and England.

The parties had a temporary, without predjudice consent order for Mr. Malek-Gilani to pay two children’s post-secondary expenses for their second and third degrees in the United Kingdom, however the children submitted budgets that included expenses they did not incur.

After failing to account for tens of thousands of dollars provided for their support, the children sought more money from our client.

Ms. Almeida brought a motion to enforce the order and Mr. Malek-Gilani countered with a motion to have Ms. Almeida contribute to half the expenses after experiencing a change in his financial circumstances.

Mr. Malek-Gilani’s motion against Ms. Almeida to require her contribution to the children’s expenses was granted. Efua was able to satisfy the Court that a material change in circumstances had occurred in order to change the terms of an order before trial.

Her client was subsequently successful in recovering most of his legal fees.

Case Facts

  • 2019 – Ontario Superior Court of Justice
  • Our client was entirely successful on his motion
  • This case involved complex financial and jurisdictional issues

Boutros v. Boutros

2012 – Ontario Superior Court of Justice

In this 2012 trial decision, several matters were addressed including issues related to custody and access, child support, section 7 expenses for the children, spousal support and property issues. The parties were married for 16 years and separated in 2009 after having three children together.

Andrea Di Battista represented the mother, and Paul McInnis represented the father.

The father, who was employed as a physician, was ordered to pay spousal support to the mother who had stopped working after the birth of the children.

The father was also ordered to pay for additional courses or upgrades the mother might take over a period of three years to help her achieve financial independence.

The Honourable Justice Greer’s trial decision in relation to property is particularly noteworthy as the mother sought and was awarded an unequal division of net family property, primarily due to losses incurred by the father arising from a Ferrari that he purchased.

Case Facts

  • 2012 – Ontario Superior Court of Justice
  • At the end of the trial, spousal support and educational support were awarded to the mother, our client
  • Our client was also awarded an unequal division of net family property, which is quite rare

Fernandes v. Darrigo

2018 – Ontario Superior Court of Justice Divisional Court

The father in this case, who was represented by John Syrtash, brought an interim motion in 2017 for sale of the matrimonial home.

In addition to claims made by the mother that would be prejudiced by the order for sale, one of the parties’ children had significant special needs.

The court ordered that the home be sold at the request of the father, with costs payable to him by the mother.

The mother, who was represented by Andrea Di Battista, successfully appealed the decision and in 2018 the Divisional Court reversed the decision made to sell the home as well as the cost award made against the mother.

The father was ordered to pay the mother costs of the appeal in the amount of $15,000.00.

Case Facts

  • 2018 – Ontario Superior Court of Justice Divisional Court
  • We successfully appealed a previous decision against the mother
  • Significant costs were awarded to the mother to cover legal fees for the appeal

Gilliland v. Gilliland

2009 – Ontario Superior Court of Justice

This was a high-conflict and very complex case. The trial was heard over the course of 19 days in 2009 and addressed issues including child and spousal support section 7 expenses, the validity of a domestic contract and various property issues. The decision was released in 2010.

The parties began cohabiting in 1989, were married in 1995 and had one son together in 2005. Both parties were employed as pilots for U.S. airlines. The mother is Canadian and was represented by Nicole Tellier and Alex Finlayson (who is now Justice Finlayson, having been appointed as a Judge in the Ontario Court of Justice effective August 9, 2017). The father (represented by Andrea) is American.

The mother was unsuccessful with respect to several orders that she sought – including orders for lump sum spousal support, a vesting order and orders in relation to property concerning the estate of one of the father’s deceased family members.

The parties reached an agreement regarding parenting in advance of trial, and the father paid child support to the mother. The father was ordered to pay periodic spousal support to the mother and was ordered to contribute to the cost of a full-time live-in nanny in part due to the nature of the parties’ employment. The amount of support paid to the mother – including contribution toward section 7 expenses – left each party with 50% of their combined net disposable incomes.

In the decision on costs, despite the fact that there was mixed success for both parties, the court found that the father was by far more successful than the mother and ordered that the mother pay costs to the father fixed at $75,000.00 including disbursements.

The mother then initiated proceedings in the Ontario Court of Appeal and brought a motion which the father successfully defended.

Case Facts

  • 2009 – Ontario Superior Court of Justice
  • The case involved a Canadian mother and American father
  • We successfully defended the father against various orders sought by the mother, and the father was awarded costs
  • A subsequent appeal was successfully defended

Ilmer v. Ilmer

2015 – Ontario Superior Court of Justice

This case involved complex issues and there were significant periods of delay in the proceedings.

The parties had one child together, and an order was made requiring the father to pay child support in 2003. In 2015, the mother, who was then represented by Andrea Di Battista, brought a motion to strike the father’s pleadings.

The father demonstrated a pattern of ignoring court orders. The most egregious of which was his failure to pay the ordered amount of child support since 2005. The father failed to comply with the Family Law Rules and failed to pay a cost order. His financial statement and financial disclosure were incomplete.

Although pleadings are struck in family law cases only in exceptional circumstances and where no other remedy would suffice, the father’s pleadings were struck. He was no longer permitted to participate in the case and he was ordered to pay further costs to the mother in the amount of $8,000.00 for the motion.

Case Facts

  • 2015 – Ontario Superior Court of Justice
  • Despite significant periods of delays, we successfully represented a mother in a motion to strike the father’s pleadings
  • Costs of $8,000.00 were awarded to the mother to cover her legal expenses for the motion

Powell v. Powell

2007 – Ontario Superior Court of Justice

In this case, the mother brought an interim motion in 2007 seeking an order for spousal support from the father. The mother sought spousal support in the amount of $625 monthly on compensatory grounds.

The father, who was represented by Andrea Di Battista, took the position that the mother was not entitled to any spousal support, and further that given his responsibility to pay child support and extraordinary expenses for the child of the marriage, he was unable to afford to pay spousal support.

The father was successful and the court ordered no spousal support payable based on both a lack of entitlement and also an inability to pay.

Case Facts

  • 2007 – Ontario Superior Court of Justice
  • We successfully defended a father against a claim for spousal support due to his inability to pay

Scott v. Scott

2008 – Ontario Superior Court of Justice

In this case, the parties were married for 18 years and had a 14-year-old son. The trial of this matter to determine issues of child support, spousal support, access and equalization of family assets was heard by the Honourable Justice Rogers in 2007 and lasted nine days. The mother was represented by Andrea Di Battista. The father was represented by Gordon Allen.

The trial was chaotic. The father failed to disclose documents until a week before trial, and in some cases, during trial. Examining deductions and the income tax return of the father was found to be impossible because of late or non-existent disclosure. Income was imputed to the father based in part on the lack of clarity about deductions as well as admissions of other sources of money not reflected on the tax return, in addition to the considerable skills of the father.

The mother was awarded custody of the child, and the court would not force the 14-year-old boy to participate in access beyond his willingness. The father was ordered to have access to his son in accordance with the son’s wishes, and to enrol him in counselling.

Following the release of the trial decision in 2008, the Court determined the issue of costs. This is a very rare decision where costs were ordered to be paid in part by counsel. In the subsequent decision on costs, Justice Rogers ordered costs in the mother’s favour in the amount of $25,500.00 plus G.S.T. Of that sum, the father was ordered to pay 75% ($19,125 plus G.S.T.) and his counsel was ordered to pay 25% ($6,375 plus G.S.T.).

Case Facts

  • 2008 – Ontario Superior Court of Justice
  • This was a nine-day trial
  • The case was extremely complex due to unique circumstances
  • Our client was awarded custody and costs were ordered to be paid in part by opposing counsel, which is quite rare

Santos v. Santos

2019 – Ontario Superior Court of Justice

Efua represented Ms. Santos, who defended a claim for custody and access in this case before Justice Sherr in the Ontario Court of Justice.

Ms. Santos sought an order for sole custody of her young son, and an order that the father, Mr. Santos, have supervised access. Ms. Santos was successful in obtaining sole custody and supervised access.

Justice Sherr heard cost submissions at the conclusion of the motion and despite Mr. Santos’ claims that he could not afford to pay any legal fees, Efua successfully argued for and obtained an order for costs in Ms. Santos’ favour.

Case Facts

  • 2019 – Ontario Court of Justice Decision
  • Our client was awarded sole custody and supervised access for the father
  • We successfully represented our client and obtained costs against the father who claimed to have limited resources
  • Custody is rarely awarded before trial

Qadeer v. Jaffer

2016 – Ontario Superior Court of Justice

This case involved a claim by the father, Mr. Jaffer, for access and the claim by the mother, Ms. Qadeer, for child support.

Efua successfully argued to have Mr. Jaffer’s pleadings struck after he breached court orders for disclosure.

Ms. Qadeer was successful in recovering almost all of her costs from the father, given her success on the motion and the father’s conduct.

Case Facts

  • 2016 – Ontario Court of Justice Decision
  • We succeeded in having the father’s pleadings struck (case dismissed) due to breach of court orders
  • Our client was awarded most of her costs

Cirinna v. Cirinna

2018 – Ontario Superior Court of Justice

The parties in this case had one child together, who resided primarily with the mother after separation.

The mother failed to comply with numerous court orders and took active steps to undermine the child’s relationship with his father, including unilaterally denying the father access to the child.

The father, who was represented by Andrea Di Battista, successfully obtained an order on an interim motion changing the child’s primary residence from the mother to the father, as well as other relief including an order for costs payable by the mother in the amount of $6,000.00.

Case Facts

  • 2018 – Ontario Superior Court of Justice
  • With our help, the father’s home became the primary residence for the child
  • The father was also awarded legal costs

Amin v. Kabir

2020 – Ontario Superior Court of Justice

In this case, the parties had two young children; the youngest was residing primarily with Ms. Amin and the eldest with Mr. Kabir. There was no order or agreement about the primary residency of the children at the time of the Motion. In her Motion, Ms. Amin sought that the parties’ then-7-year-old son who was in the primary care of Mr. Kabir attend Castlebridge Public School in her catchment area in Peel. Mr. Kabir had originally not consented to the child continuing school in Peel, but on the eve of the Motion it was made clear that Mr. Kabir agreed that the child attend Castlebridge PS, but online instead of in person.

At the time the Motion was heard there were no reported decision regarding COVID-19 related in-person vs. online attendance. However, while completing the decision, the Honourable Justice Trimble was made aware of the case of Chase v. Chase, 2020 ONSC 5083 which specifically dealt with this issue. His Honour provided counsel for Ms. Amin and Mr. Kabir with the opportunity to submit further argument as a result of a reported case on the issue.

There was no medical reason as to why the child should not attend in person school, and the Court held that the child’s mental and physical well-being would be better provided for if he attended school in-person.

In the end, Alexandrea was successful in ensuring that the child’s best interests were met by having him attend school in person.

Case Facts

  • 2020 – Ontario Court of Justice Decision
  • We succeeded in ensuring our client’s child’s best interests were met

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