Anthony Di Battista

In this family-law costs decision following a support and travel trial, the court addressed divided success, the effect of multiple settlement offers under the Family Law Rules, allegations of litigation harassment, and a claim for personal costs against opposing counsel.

The court held that the father was more successful overall at trial, but reduced his recovery because he took unreasonable positions on income and support, while also finding that the mother had taken more extreme and unreasonable positions.

The court rejected allegations that the father had been proven to have harassed the mother and counsel, and also rejected the request to impose personal costs on counsel, applying the two-part test for representative-at-fault costs with extreme caution.

The mother was ordered to pay trial-related and motion costs totalling $27,000, the father was ordered to pay counsel $15,000 for the costs proceeding, and the request to have the father's costs enforced by the Director as support was dismissed.

The court found the motion judge erred by treating oppression-based personal liability too narrowly and set aside dismissal of claims against the personal respondents.

It declined to grant summary judgment for the appellants due to pleading and evidentiary gaps.

The trial primarily addressed child and spousal support obligations for the parties' two-year-old son.

The court determined the parties' incomes, including imputation for both the father's corporate income and the mother's personal income, finding the father deliberately under-employed and the mother earning unreported cash.

The court adjusted child support retroactively and prospectively based on imputed incomes and a new shared parenting arrangement.

Spousal support was ordered at a reduced amount from the temporary order, with an indefinite (reviewable) duration, and a significant overpayment by the father was ordered to be repaid by the mother through set-off against ongoing support.

The Applicant father sought to lift supervised parenting time and expand his parenting schedule with his 2.5-year-old daughter.

The Respondent mother opposed, citing safety concerns, communication issues, and the father's past disrespectful conduct.

The court found that while the father had made significant improvements, continued supervision was necessary for a limited period, with a step-up schedule for increased parenting time.

The court emphasized the importance of child-focused and respectful communication between parents, particularly for a young child, and provided a roadmap for the eventual lifting of supervision based on adherence to communication protocols and other conditions.

The motion for immediate lifting of supervision was denied, but expansion of time was granted with conditions.

The applicant sought an interest in two properties based on constructive or resulting trust, an equalization of net family property, and spousal support.

The court found the applicant lacked credibility, had unclean hands, and failed to prove any contributions to the properties.

The court determined the date of separation was in April 2013, making the equalization claim time-barred under the Family Law Act.

The spousal support claim was also dismissed.

Despite the respondents' success, no costs were awarded because they had knowingly breached prior court orders regarding the properties.

The appellant vendor appealed a summary judgment that granted specific performance to purchasers of three townhomes and dismissed the vendor's motion for forfeiture of deposits.

The transactions failed to close on the scheduled date due to delayed mortgage funds.

The motion judge found the vendor in anticipatory breach for prematurely terminating the Agreement of Purchase and Sale (APS), ruling that the "time is of the essence" clause did not impose a specific closing time and that the vendor acted unreasonably.

The Court of Appeal upheld the motion judge's decision, finding no error in the interpretation of the "time is of the essence" clause or the finding of anticipatory breach and bad faith.

The Court also denied leave to appeal the costs award, finding no error in principle or irrationality in the quantum.

The Applicant sought primary residence of the children and remedies for the Respondent's breaches of previous orders.

The Respondent cross-moved for shared parenting.

The court admitted surreptitiously recorded conversations between the Respondent and the child, finding them highly probative of the child's best interests despite policy against such recordings.

The court found evidence of family violence and the Respondent's lack of respect for court orders and inability to co-parent.

Primary residence was granted to the Applicant, with a specific parenting schedule for the Respondent.

The Respondent was ordered to reimburse the Applicant for vehicle rental costs, lock replacement, and to return the family vehicle.

The Respondent was also ordered to reimburse the joint line of credit for funds improperly withdrawn and interest charges.

The court also ordered mutual questioning and OCL involvement.

The moving party brought a motion for leave to appeal an order dated October 7, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party fixed at $3,000.

Following a successful motion for summary judgment and specific performance regarding agreements of purchase and sale, the plaintiffs sought costs on a substantial indemnity basis.

The court found that the defendant acted in bad faith and considered the plaintiffs' Rule 49 offers.

The court rejected the plaintiffs' requested amount of $41,187, finding it excessive given the unified representation of the three plaintiffs.

Instead, the court awarded the plaintiffs substantial indemnity costs fixed at $17,500, using the defendant's own full indemnity cost outline as a benchmark for reasonableness.

The moving party brought a motion for leave to appeal an unreported order of Lafrenière J. dated January 21, 2022.

The Divisional Court dismissed the motion for leave to appeal without costs.

The plaintiffs sought specific performance of three Agreements of Purchase and Sale for neighboring homes, alleging the defendant wrongly repudiated the contracts.

The defendant brought a cross-motion for summary judgment, seeking dismissal of the action, discharge of a Certificate of Pending Litigation, and damages.

The court found that the plaintiffs were ready, willing, and able to close the transactions, and that the defendant acted in bad faith by prematurely terminating the agreements, refusing a reasonable extension, and attempting to rely on a "time is of the essence" clause despite its own conduct and a conflicting document registration agreement.

The court granted the plaintiffs' motion for summary judgment, ordering specific performance, and dismissed the defendant's cross-motion.

The applicant brought a motion to strike the pleadings of her former husband and his mother for failing to comply with multiple court orders requiring financial disclosure.

The husband had repeatedly failed to provide valuations of his business interests and income reports over a period of nine years, offering various excuses related to his retained professionals and the pandemic.

The court found the husband's non-compliance to be exceptional and egregious, striking his Answer and allowing the applicant to proceed to an uncontested trial.

The mother-in-law's disclosure was also found deficient, but the court granted her one final opportunity to comply before her pleadings could be struck.

The applicant father brought a motion to change the child's surname to a hyphenated name, arguing a material change in circumstances due to increased access and bonding.

The respondent mother, who has sole custody, brought a cross-motion to enforce a prior consent order regarding section 7 expenses, life insurance, and RESP contributions.

The court dismissed the father's motion, finding that under the Change of Name Act, only a person with lawful custody can apply for a name change, and the father had not sought to vary the custody order under the Children's Law Reform Act.

The court granted the mother's enforcement motion, ordering the father to authorize direct dental claims, pay his share of guitar lessons, provide proof of life insurance, and deposit $10,000 into the mother's RESP for the child.

Following a motion to change that resulted in a shared parenting schedule, the parties sought clarification on the terms of the draft order regarding child support and arrears, and made submissions on costs.

The court ordered that child support be payable by both parties rather than set off, to preserve tax benefits, and calculated childcare arrears on an after-tax basis.

The applicant sought full indemnity costs, alleging bad faith and relying on offers to settle.

The court found the respondent's conduct unreasonable but not in bad faith, and noted the offers did not meet the strict requirements of the rules.

Costs were awarded to the applicant on a partial indemnity basis in the amount of $37,000, payable in installments.

The applicant brought a motion to change a previous order, seeking implementation of an equal parenting schedule and a review of spousal support.

The respondent opposed, arguing the existing schedule was already equal and no material change had occurred.

The court found that the previous order explicitly contemplated a move to equal parenting time and a spousal support review, thus no material change was required.

The respondent was heavily criticized for persistent failures to provide full financial disclosure and for obstructive behavior regarding children's documents and activities.

The court granted the applicant's motion, ordering an alternating week equal parenting schedule, terminating spousal support, imputing income to the respondent due to disclosure failures, and adjusting child support retroactively.

Motion review of an emergency restraining order granted without notice on April 2, 2020.

The applicant sought to restrain the respondent from direct or indirect contact with her and their infant daughter, and from approaching their residence or workplace.

The respondent contested the order, denying allegations of abuse and arguing he had voluntarily left the home.

The court found evidence of emotional and aggressive behaviour, including the respondent's admission to breaking down a locked door.

The court granted a modified restraining order prohibiting direct contact and requiring communication through counsel, while establishing supervised access to the child through a third party facilitator.

The court also established a temporary parenting schedule pending a case conference.

Following a seven-day family law trial, the court resolved outstanding monetary issues including equalization of net family property and child support.

The court permitted the respondent to pursue an equalization claim despite deficient pleadings, ordering the applicant to pay $474.50.

The court declined to impute additional income to the applicant for intentional under-employment, finding his reduced hours were due to construction industry conditions and bona fide medical leaves.

Given the new equal shared parenting arrangement, the court applied section 9 of the Federal Child Support Guidelines and ordered the applicant to pay a set-off amount of $341 per month in child support, with section 7 expenses apportioned 70/30.

The court addressed two motions concerning jurisdiction over custody and access of two children.

The applicant father initiated divorce proceedings in Ontario, claiming custody, while the respondent mother initiated parallel proceedings in Québec and disputed Ontario's jurisdiction.

The central issue was whether the children were habitually resident in Ontario, specifically whether the mother had agreed to a permanent change in residency or if it was time-limited.

The court found that the mother had knowingly agreed to the children residing with the father in Ontario without a time-limited condition, and her subsequent unilateral assertions of a temporary arrangement were not acknowledged or agreed to by the father.

Consequently, the court declared Ontario to be the children's habitual residence and assumed jurisdiction.

The applicant father brought a motion seeking a change in the child's primary residence, expanded access, and an urgent trial on custody and access issues.

The respondent mother had repeatedly and unilaterally denied the father access to their seven-year-old son, flagrantly disobeying multiple court orders, including consent orders.

The court found the mother's actions were harming the child and constituted alienating behaviour.

Exercising its discretion under the Family Law Rules and considering the child's best interests under the Children's Law Reform Act, the court ordered a change in the child's primary residence to the father, set an access schedule for the mother, and scheduled an urgent trial.

The court also awarded the father full recovery costs of $6,000 due to the mother's unreasonable conduct and non-compliance.

The appellant appealed a trial judgment granting sole custody of the parties' nine-year-old son to the respondent, as well as the trial judge's decisions regarding the matrimonial home valuation, division of notional proceeds, treatment of chattels, and a $125,000 costs award.

The parties had cohabited for 14 years and separated in May 2014.

The Court of Appeal dismissed the appeal on all grounds except for a calculation error relating to child support arrears, which was corrected.

The court upheld the custody award, finding the trial judge properly applied the best interests of the child test, and upheld the property division and costs award as discretionary decisions entitled to deference.