Alexei Durgali

The applicant sought an order for a Voice of the Child report to determine the child's preferences regarding high school attendance.

The respondent opposed the motion and contested the proposed reporter.

The court raised issues regarding the jurisdiction of an Associate Justice to order such a report and the sufficiency of the evidence.

Finding that an Associate Justice lacks the necessary jurisdiction, the court referred the motion to a judge to be decided in writing on an expedited basis.

The moving party brought a motion for leave to appeal a lower court decision dated December 31, 2024.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 to the responding party.

The parties, parents of two children, sought a determination on decision-making responsibility, holiday schedules, retroactive child support, and section 7 expenses following a high-conflict separation.

The court ordered that the respondent father have final decision-making responsibility for education, while the applicant mother have final decision-making responsibility for medical issues, including the authority to have the children vaccinated against Covid-19.

The court found the respondent did not meet the 40% shared custody threshold under section 9 of the Federal Child Support Guidelines and ordered him to pay $25,050 in retroactive child support.

Claims for section 7 expenses were largely dismissed due to a lack of consultation, though a small amount for tutoring was awarded.

The applicant mother sought sole decision-making authority and primary residence of the two children, with the respondent father's parenting time limited to the status quo.

The father sought parallel decision-making and a shared parenting schedule.

The court found that the parties had a high-conflict relationship and that the mother's judgment was impacted by her negative view of the father, including unsubstantiated allegations of sexual abuse.

Relying on the recommendations of a court-appointed assessor, the court ordered parallel decision-making, granting the father authority over health decisions and the mother authority over education and dental decisions.

The court also expanded the father's parenting time to include alternating weekends and every Wednesday overnight.

The mother brought a motion to change a final order to permit her to relocate the parties' child from Ottawa to the Greater Toronto Area, where she resides with her new husband and their children.

The father opposed the relocation and sought to maintain the existing shared parenting arrangement.

The court found that a material change in circumstances had occurred and that the relocation was in the child's best interests, noting the child's strong preference and the father's limited time spent with the child during his parenting time.

The court granted the relocation, ordered a new parenting schedule, and ordered the father to pay ongoing child support based on the table amount, while imputing an income of $40,000 to the mother for the period of shared parenting.

The respondent father sought increased parenting time and a change to the children's exchange location, while the applicant mother opposed these changes and sought financial orders.

The court addressed allegations of sexual interference against the father, which were unverified by police and CAS, and noted the mother's non-compliance with a prior order regarding questioning the children.

The father's request for increased daytime access was granted, and the exchange location was changed for safety.

Other parenting requests were adjourned pending a full assessment.

On financial matters, the mother's claim for August 2019 child support was deferred due to incomplete disclosure.

The father was ordered to contribute to certain Section 7 expenses (camping, day camps, swimming lessons, strike day daycare) but not others (babysitting, Guides, hot lunch differential).

The applicant mother brought an urgent motion during the COVID-19 crisis to reduce the respondent father's parenting time, seeking to eliminate overnight visits due to alleged inappropriate sexual content disclosures by their two young daughters (aged four and six).

The father denied the allegations, suggesting the mother was coaching the children.

The court found the children's statements, particularly those made to the social worker, were not sufficiently reliable to establish the father's culpability, noting potential parental influence and shortcomings in the Children's Aid Society (CAS) investigation.

The motion to reduce the father's access was dismissed.

The court issued orders to mitigate harm, prohibiting parents from discussing sexual content statements with the children and requiring the mother to report any future disclosures directly to CAS and the physician without further questioning the child.

The applicant mother sought an urgent motion to reduce the respondent father's access to their children, specifically to eliminate overnight access, based on disclosures from their two young daughters (ages 4 and 6) regarding the father's alleged sexualized comments.

The father denied the allegations, noting a prior CAS investigation found them unverified.

The court determined the matter was urgent, affecting the children's safety, and granted leave for the motion to proceed despite the Chief Justice's Notice to the Profession regarding COVID-19.

The court also ordered the mother to forthwith deliver a recording of one child's statement to the father and made arrangements for cross-examinations to proceed virtually.

This endorsement addresses disputed issues of admissibility of evidence in advance of a temporary motion concerning parenting time.

The court considered surreptitiously obtained recordings made by the father, as well as police occurrence reports and Children's Aid Society (CAS) file notes.

Applying the general exclusionary discretion for surreptitious evidence in family law, the court found that the father's recordings had low probative value and were outweighed by significant systemic and case-specific prejudice, leading to their exclusion.

The court also clarified the admissibility of business records under the Evidence Act, ruling that while the records themselves might be admissible, embedded hearsay from third parties not under a business duty to report, or opinions, were not.

Consequently, most of the father's tendered evidence was deemed inadmissible.

The applicant mother brought a motion for a temporary order of sole custody and primary residence of the parties' two children, or alternatively a parenting assessment.

The respondent father sought joint custody or no order as to custody, maintaining the existing 2-2-3 shared parenting schedule.

The court noted the conflicting affidavit evidence and the challenges of making temporary custody orders without a full trial or assessment.

Finding no compelling reason to alter the status quo, the court made no order for custody, directed the 2-2-3 schedule to continue, and ordered a joint parenting assessment.

Temporary child and spousal support were also ordered on consent.

Family and Children's Services of Renfrew County brought an emergency motion seeking to place access between the respondent father and the three subject children in the Society's discretion.

The motion arose following a conflict between two of the children regarding an allegation of sexual touching made by one child against the father.

The father's inability to move past the allegation and his characterization of the child as a liar created significant emotional distress for all three children, with two threatening self-harm.

The court granted the motion in part, restricting the father's access to the middle child while maintaining access with the two other children, and ordered the father not to discuss the proceedings with any of his children.

The applicant brought a motion seeking to enforce an interim separation agreement regarding a joint line of credit, compel outstanding financial disclosure, and request case management for a high-conflict family law proceeding.

The court ordered a structured process for the respondent to pay his share of the line of credit while ensuring his liability is extinguished.

The court also established a fixed timeline for both parties to complete financial disclosure and ordered that the proceeding be case managed.

The respondent father brought a motion seeking a temporary 50-50 parenting regime for his three young daughters.

The applicant mother opposed, arguing the status quo was working and a parenting assessment did not constitute a material change.

The court dismissed the father's motion for 50-50 parenting, finding no compelling reason to alter the existing arrangement and that the assessor's observations did not amount to a material change of circumstances.

However, the court did address summer access, adopting a modified version of the mother's proposed schedule and implementing a brief modified 3-2-2 regime for the father starting in late August to allow him to demonstrate its viability before the scheduled trial.

The applicant sought substantial indemnity costs following two motions where the respondent's motion for security for costs was dismissed, and the applicant was granted supervised access.

The respondent argued for reserving costs to the trial judge or sought her own costs.

The court, applying Family Law Rules, found the applicant to be the more successful party and rejected deferring the costs decision.

Considering the importance of the security for costs issue and the parties' reasonable behaviour, the court awarded the applicant $9,000 inclusive of disbursements and HST, payable upon the trial judge's decision on trial costs.

The respondent mother brought a motion seeking $100,000 in security for costs against the applicant father, who resides in Spain and is seeking sole or joint custody of their child.

The father brought a cross-motion for unsupervised access.

The court dismissed the motion for security for costs, finding that while the father resides outside Ontario, his custody claim has merit and is not a nuisance.

The court also denied the father's request for unsupervised access due to outstanding criminal charges and flight risk concerns, instead ordering supervised access.

On a motion to change a separation agreement, the applicant sought amendments to provisions governing child support and post-secondary education expenses for children over the age of 18 pursuing education.

The court found no binding agreement had been reached at a prior case conference regarding the proposed amendments.

The court amended the agreement to require child support while a child over 18 attends post-secondary education on a full-time basis and imposed an age limit of 25 for such support where the child resides with a parent.

The court also replaced the existing post-secondary expense clause with a detailed budgeting and contribution framework requiring the child to contribute between one-third and two-thirds of expenses, with the remainder shared proportionally between the parents.

Given the mixed success of the parties, no costs were ordered.