Family and Matrimonial Law

This decision concerns a costs award following motions between former spouses regarding parenting and child support.

The respondent father sought full recovery costs after being successful in obtaining primary care of the parties’ three younger children.

The court found that while the father was successful, full indemnity costs were excessive and instead awarded partial indemnity costs, fixed at $22,135.32, enforceable as child support.

The decision reviews the principles governing costs under the Family Law Rules, the parties’ conduct, and the proportionality of the costs claimed.

The applicant sought to vary child support and reduce arrears, claiming a material change in circumstances and undue hardship.

The respondent opposed and brought a cross-application for financial disclosure, variation of child support, and reimbursement for Section 7 expenses.

The court found the applicant intentionally unemployed/underemployed, had access to significant income, and failed to provide full financial disclosure despite multiple orders.

The applicant's claims were dismissed.

The court imputed income to the applicant, ordered her to pay substantial child support arrears and ongoing support, and to secure health benefits and life insurance for the child.

The respondent father brought a motion seeking an equal/shared parenting schedule for the parties' two children.

The applicant mother opposed, seeking to reduce the father's parenting time.

The court rejected the mother's position, finding she unilaterally created the post-separation status quo by withholding the children without justification.

While giving some weight to the older child's views for a "home base," the court emphasized the children's need for a strong relationship with both parents.

A temporary parenting schedule was ordered, significantly expanding the father's parenting time, including alternating weekends with Monday drop-off and weeknight visits.

The mother was ordered to pay costs to the father due to her unreasonable conduct.

This judgment addresses various parenting and child support issues between former spouses.

The Father sought a declaration of primary residence for the children, retroactive child support from the Mother, and sole decision-making for the youngest child.

The Mother sought joint decision-making, a shared parenting schedule, and arrears from the Father.

The court found a material change in circumstances, imputed income to the Mother, and ordered her to pay retroactive child support to the Father.

For the youngest child, Hannah, the court ordered joint decision-making and a shared parenting schedule.

The Mother's claim for pre-July 2021 arrears from the Father was dismissed due to insufficient evidence.

The court also clarified the allocation of Section 7 expenses and Canada Child Benefit eligibility in shared parenting arrangements.

The appellant mother sought costs against the Children's Aid Society of Toronto (CAS) for a second appeal to the Superior Court of Justice, which became moot after the CAS withdrew its protection application in the Ontario Court of Justice.

The case involved conflicting interim orders between the two courts and concerns about the CAS's conduct in investigation and presentation of its case, including failing to meet with the mother and withholding relevant information from the OCJ.

The court found the CAS acted unfairly and unreasonably, justifying a costs award, despite the general exception for government agencies in child protection cases.

This costs endorsement follows the respondent's successful jurisdictional motion to dismiss the applicant's originating application and addresses the costs of the applicant's unsuccessful contempt motion.

The jurisdictional motion centered on the Ontario Superior Court's power to set aside a final New Brunswick family court order, which the court found it lacked.

Applying Rule 24 of the Family Court Rules, the court awarded partial indemnity costs to the successful respondent, noting the moderate complexity of the issues and the inappropriateness of the applicant's contempt motion, which lacked proper service and was an ill-suited remedy.

The Respondent father moved to set aside Minutes of Settlement (MOS), arguing the Applicant mother fundamentally breached them by commencing a new defamation proceeding in Iran the day after signing the MOS, which was intended to consolidate all litigation.

The Applicant mother cross-moved to enforce the MOS and for the Ontario court to assume jurisdiction over parenting issues.

The court found that the Applicant's failure to disclose and refusal to withdraw the Iranian defamation claim constituted a fundamental breach of the MOS, as the agreement's core purpose was to terminate all multi-jurisdictional litigation arising from the marriage breakdown in favour of an alternative dispute resolution process in Ontario.

The court set aside the MOS, dismissed the Applicant's cross-motion, and declined to address the question of jurisdiction at that stage.

The appellant, Shawn Poitras, appealed a trial decision that awarded the respondent, Natalie Burke, child and spousal support, arrears, an equalization payment, and exclusive possession of the matrimonial home, following an uncontested trial where the appellant's answer was struck due to repeated non-disclosure.

The appellant raised four grounds of appeal: denial of participation rights, insufficient scrutiny of the respondent's evidence, indefinite spousal support, and excessive costs.

The Court of Appeal dismissed the appeal, denying leave to file fresh evidence (failing the Palmer test), finding no unfairness regarding participation rights given the appellant's conduct, upholding the trial judge's scrutiny of evidence and spousal support award (applying Moge and SSAGs), and affirming the costs award.

The applicant father brought a motion to change a 2012 parenting order, seeking "week-about" parenting time for his 9-year-old son.

The respondent mother opposed this, requesting supervised access and programs for the father.

The court considered the child's best interests under the Children's Law Reform Act, including the child's expressed wishes for more time with his father.

However, the court found the father's relationship with the child to be "excessive" and "self-centered," concluding that further increasing parenting time beyond the existing interim order would not be in the child's best interests.

The father's motion for increased parenting time was dismissed, and no costs were awarded.

The applicant sought full costs after an uncontested trial, citing the respondent's bad faith conduct, her success on all claims, and beating her offer to settle.

The court awarded full recovery costs of $217,229.25, finding the respondent acted in bad faith through persistent non-disclosure, obstruction, and asset concealment.

A portion of these costs, related to support issues, was made enforceable by the Family Responsibility Office, while costs for a preservation motion related to family property were not.

The applicant sought interim custody and exclusive possession of the matrimonial home, while the respondent sought joint custody and to retain the home.

The court granted the applicant interim sole custody, finding joint custody unworkable due to significant animus between the parties.

The respondent was granted unsupervised parenting time conditional on medication adherence.

The applicant was also granted interim exclusive possession of the matrimonial home, prioritizing the child's best interests over the respondent's business needs.

Costs were divided due to mixed success.

The applicant brought an urgent motion to compel the sale of the matrimonial home, allow her to sign necessary documents on the respondent's behalf, and for the respondent to vacate the property.

The respondent had refused to close the transaction, citing the COVID-19 pandemic and attempting to leverage the situation for other litigation goals.

The court found the matter urgent, rejected the respondent's arguments regarding the pandemic and his credibility, and granted all of the applicant's requested orders, including a writ of possession and police enforcement to ensure compliance and the applicant's safety.

This is a triage endorsement during the COVID-19 pandemic concerning an urgent motion brought by the applicant father for expanded access to his two young children.

The court, having prior familiarity with the custody/access dispute, noted that the Children's Aid Society (CAS) no longer deemed full supervision necessary and could no longer provide supervision due to reduced operations, resulting in the father having no in-person access.

Given that the police investigation against the father did not result in charges and CAS's changed position, the court found the father's issues potentially urgent.

The endorsement set a schedule for the respondent mother to file responding materials and for the applicant father to file a reply, including an updated letter from CAS, before the matter is scheduled for a judge to formally determine urgency and make necessary orders.

The Children's Aid Society of Ottawa brought a motion for summary judgment seeking an order that the child, H., was in need of protection and for a disposition of extended society care for purposes of adoption, with no parental access.

The respondent mother could not be located, and the respondent father filed a plan of care lacking detail and did not participate further.

The court granted the Society's motion, finding the child in need of protection due to parental neglect, severe drug abuse by the mother, and the father's violent criminal history.

The court also determined that extended society care was in the child's best interests and denied parental access, citing the lack of parental contact, the child's young age, and the potential impairment to adoption opportunities.

The appellant father appealed an order of the Superior Court motion judge who struck his motion to change a trial judge's order for spousal and child support, and granted the Family Responsibility Office's motion for enforcement.

The trial judge had imputed annual income of $110,000 to the father and ordered him to pay ongoing spousal and child support for two daughters and an equalization payment.

The father had failed to comply with multiple court orders, owing over $60,000 in support arrears and over $50,000 in equalization payments.

The motion judge found the father had the means to pay but chose not to prioritize court-ordered payments.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the motion judge's discretionary orders.

The parties, divorced in 2004, both moved to vary a child support order.

The applicant sought an increase in child support and extraordinary expenses based on an imputed income for the respondent.

The respondent sought to reduce arrears to zero and ongoing support to zero, citing a criminal record hindering employment and his role as a stay-at-home parent.

The court found a material change in circumstances due to the respondent's criminal record affecting his earning ability.

The court imputed an annual income of $15,150 to the respondent, ordering ongoing child support of $100/month and extraordinary expenses of $25/month, commencing September 1, 2016.

Arrears were fixed at $1,000, payable at $50/month.

The respondent's motions to change access and restore his driver's licence were dismissed due to lack of jurisdiction for the latter.

The applicant's motion to change was dismissed in its entirety, but she was awarded $100 in costs.

This trial addressed a dispute between separated spouses, equal shareholders in a landscaping business, concerning the husband's alleged misappropriation of funds and the equalization of net family property.

The court found the husband lacked credibility and had indeed skimmed cash payments from the business.

The husband was ordered to pay $76,275.00 to the corporation for misappropriated funds and $122,340.22 to the wife as an equalization payment, with the full value of the business attributed to him due to his effective takeover.

The wife's claim for punitive damages was dismissed, as the other orders and costs were deemed sufficient for denunciation and deterrence.

This is a child protection application under Part III of the Child and Family Services Act.

The Children's Aid Society sought an order making the child a crown ward for adoption purposes.

The mother sought return of the child on a supervision order or, alternatively, crown wardship with access.

The child had been in continuous care of the society since November 2010 following apprehension due to inadequate parenting and safety concerns.

The mother had agreed to a finding that the child was in need of protection.

The court found that the mother had significant intellectual and adaptive functioning deficits that prevented her from reading and responding appropriately to the child's cues, demonstrated poor judgment regarding child safety, missed a substantial portion of access visits, exhibited housing instability, and lacked meaningful support systems.

The court concluded that a supervision order was not in the child's best interests and that crown wardship with access could not be ordered as the mother failed to establish that access would be beneficial and meaningful to the child or that it would not impair the child's future opportunities for adoption.