Andrew Chris

Following an eight-day family law trial where the respondent father was successful on the contested issues of decision-making and parenting time, the court determined the issue of costs.

The respondent sought over $200,000 in costs, relying on multiple settlement offers that were better than the trial outcome.

The applicant mother argued against a costs award, citing divided success and her inability to pay due to financial hardship and reliance on legal aid.

The court found the respondent was the successful party and fixed his reasonable costs at $150,000.

However, recognizing the applicant's inability to pay, the court applied a 50% discount, ordering the applicant to pay $75,000 in costs.

The applicant mother sought to change an existing shared parenting and joint decision-making regime, requesting primary residence and sole decision-making authority.

The mother argued that the father had historically been financially oppressive and that the children, particularly the 13-year-old, had expressed a preference to live primarily with her.

The court relied heavily on an Office of the Children's Lawyer report which recommended maintaining the status quo.

The court found that the children's hearsay statements via text message were not sufficiently reliable to establish a change in preference.

The court dismissed the mother's claims for primary residence and sole decision-making, maintaining the week-about shared parenting schedule and joint decision-making, while ordering counselling for the eldest child to ascertain her views and preferences going forward.

The father was awarded sole custody of the parties' child and permitted to relocate to Oregon after a trial where the mother presented forged documents and fled to India mid-proceeding.

The mother appealed the trial decision.

The father brought a motion for security for costs of the appeal, and the mother brought a cross-motion for a stay of the judgment pending appeal.

The Court of Appeal granted the father's motion, finding the appeal frivolous and vexatious, and ordered the mother to post $30,000 in security.

The mother's motion for a stay was dismissed as she failed to meet the RJR-MacDonald test.

The endorsement addresses the jurisdictional question of whether a Trial Management Conference (TMC) judge has the authority under the Family Law Rules to direct the sequence in which parties lead evidence at trial.

The Applicant argued for the Respondent to lead evidence first, while the Respondent contended the Applicant should lead in the ordinary course.

The court found that a TMC judge does possess such jurisdiction, citing Rules 1(7.2), 2, and 17(6) of the Family Law Rules, and the Supreme Court's direction in Hyrniak v. Mauldin to expand judges' roles in crafting trial procedures.

The court then requested further submissions on whether to exercise this jurisdiction in the present case.

Following dismissal of a motion for leave to appeal an interim arbitration award in a family law matter, the court addressed the issue of costs.

The successful party sought full recovery costs or, alternatively, substantial indemnity costs, while the unsuccessful party argued for a reduced amount and sought a set-off due to partial success on the applicable legal test for leave to appeal.

Applying Rule 24 of the Family Law Rules, the court found the successful party was presumptively entitled to costs but reduced the award due to the other party’s success on the legal test issue and duplication of counsel work.

The court also considered the absence of settlement offers, the reasonableness of counsel’s rates, and duplication arising from multiple counsel attending the motion.

Costs were fixed in a reduced lump sum as fair and reasonable in the circumstances.

Following the dismissal of the applicant's motion for leave to appeal an arbitration award, the respondent sought costs on a full recovery or substantial indemnity basis.

The applicant argued for a reduced quantum due to his success on the issue of the appropriate test for leave to appeal.

The court found that while the respondent was the successful party, the applicant's partial success warranted a reduction.

After considering the factors under Rule 24(11) of the Family Law Rules, including duplication of counsel time, the court fixed costs payable to the respondent at $9,000.