Legal Blog

Procedural Fairness: Deciding to order interim spousal support without any notice that the issue was going to be adjudicated held to be an error of law

Zargar v. Zarrabian 2018 Ont SCJ (Div Ct)

Husband brought motion for the sale of the matrimonial home. Wife responded but brought no cross-motion seeking spousal support. Motion judge ordered sale of matrimonial home and, on his own initiative without any argument from the parties or even knowledge that there was an issue, ordered interim spousal support. The Divisional Court set aside the spousal support order noting that parties should not have to guess, speculate, or intuitively understand the issues to be decided on a motion. The court may not make an order for spousal support on its “own initiative.” To do so results in a lack of procedural fairness.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.