Andrew Graham White

This decision concerns the fixing of costs following a successful summary judgment motion by Marian Massaar against her daughter Lauren Moneck and son-in-law Anthony Moneck.

The court found that Anthony’s unreasonable conduct and failure to provide evidence that a loan was a gift justified substantial and full indemnity costs to Marian and Lauren, respectively.

The court reviewed the relevant legal principles and awarded costs to Marian ($58,885) and Lauren ($43,000), both fixed and inclusive.

The plaintiff, Marian Massaar, brought a motion for summary judgment seeking repayment of a $200,000 advance made to her daughter, Lauren Moneck, and son-in-law, Anthony Moneck, for their first home purchase.

Anthony contended the funds were a gift, while Lauren affirmed they were a loan.

The court found that the funds were indeed a loan, based on Marian's consistent intention, contemporaneous documents, and evidence of regular repayments by both defendants.

The court dismissed Anthony's arguments, finding his evidence lacked credibility, and granted summary judgment in favour of Marian for the outstanding loan amount.

Lauren's crossclaim for contribution and indemnity against Anthony was also granted.

The appellant appealed a trial judge's finding that the date of separation for an equalization claim under the Family Law Act was February 2015.

The appellant argued the trial judge erred in making credibility findings by failing to address alleged inconsistencies in the respondent's evidence and in making findings of fact based on conflicting affidavits not subject to thorough cross-examination.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of evidence and credibility, and no unfairness in the trial procedure regarding witness cross-examination, noting the appellant had requested the limited cross-examination.