Aria MacEachern

This is a costs decision following a successful appeal by the mother in a family law matter involving the Hague Convention and refugee status.

The mother's appeal overturned the application judge's decision to return the child to the country of origin after Canada granted the child refugee status.

The Court of Appeal awarded costs to the mother as the wholly successful party, fixing costs at $50,000 for the application and $30,000 for the appeal, totalling $80,000, while reversing the application judge's award of $75,000 to the father.

A wrongfully retained child was ordered returned to her country of origin after Canada granted her refugee status.

The Court of Appeal for Ontario allowed the appeal, finding that the application judge erred in failing to apply the rebuttable presumption against the return of a refugee child and in dismissing the child's objection to return.

The court held that when a child has been recognized as a Convention refugee by the Immigration and Refugee Board, a rebuttable presumption arises that there is a risk of persecution on return.

The application judge improperly questioned the refugee determination process and reweighed evidence without oral testimony or cross-examination.

Additionally, the child's clear and repeated objection to return, based on fear of violence by the father, was not given proper weight.

The matter was remitted to the Superior Court for determination of parenting and decision-making authority under section 23 of the Children's Law Reform Act.

The decision addresses a motion by the applicant father to amend his child’s birth certificate to include his name as a parent and to change the child’s surname to a hyphenated form reflecting both parents.

The court reviews the relevant legislative framework and the best interests of the child, ultimately exercising its parens patriae jurisdiction to grant the requested relief.

The court finds that the name change honours both parents, reflects the child’s biracial identity, and is already in use in various contexts.

The decision also discusses the mother’s unilateral naming of the child and the importance of both parents being recognized.

The Respondent, Kieran Engel, brought a motion seeking to declare the Applicant, Bradley J. Okonsky, in breach of their Final Order and Minutes of Settlement dated February 23, 2023.

The motion also sought orders compelling compliance, restricting further court relief, and costs.

The court found Bradley J. Okonsky in breach of several terms related to parenting time, communication, financial obligations (debt repayment, section 7 expenses, sale of a vehicle), and disclosure (financial statements, life insurance, Our Family Wizard account).

While some allegations were dismissed due to insufficient evidence or plausible explanations, the court ordered Bradley J. Okonsky to rectify the breaches within specified timelines, imposed a prospective monetary penalty of $150 per day for non-compliance, restricted his ability to seek further court relief without express permission, and awarded costs to Kieran Engel.

This decision addresses whether a previous costs award of $34,800, ordered against the Applicant for breaches of parenting orders, could be characterized as support for enforcement purposes under the Family Responsibility and Support Arrears Enforcement Act, 1996.

The Respondent argued that the costs related to child support issues in an underlying, outstanding motion to change, and that the broad discretion under Rule 1(8) of the Family Law Rules permitted such characterization, asserting that Clark v. Clark was overruled by Bouchard v. Sgovio.

The court dismissed the Respondent's request, holding that for costs to be enforceable as support, support must have been claimed and adjudicated in the specific proceeding where the costs were awarded, not merely in a related, outstanding motion.

The court affirmed that Rule 1(8) does not allow for characterizing costs in a manner inconsistent with the substance of the proceeding in which they were awarded, and that Bouchard did not overrule Clark on this point.

The applicant father sought increased parenting time for their child, proposing a 2-2-3 schedule, following his relocation to Windsor to be closer to the child.

The respondent mother opposed this, seeking less parenting time for the father and a Section 30 assessment under the Children's Law Reform Act, citing concerns about the father's conduct and alleged physical discipline.

The court dismissed the mother's request for a Section 30 assessment, finding it unnecessary, and granted the father's request for a 2-2-3 parenting schedule, emphasizing the child's best interests, including the child's expressed wish for equal time with both parents and the need to reduce parental conflict.

The applicant, Micheline Boutin, brought a motion to transfer and consolidate a civil proceeding commenced by the respondent, Victor Boutin, and his companies in Toronto with an existing family law proceeding in Brampton.

The Toronto proceeding alleged improvident sale of properties by the applicant, an issue previously addressed by the court as an adjustment to equalization in the family law case.

The court found that the Toronto proceeding's venue choice was unreasonable and that consolidation was desirable to avoid multiplicity of proceedings, promote expeditious resolution, and prevent inconsistent findings, given the substantial factual and legal overlap between the two cases.

The respondent wife brought a motion seeking an advance on equalization, interim disbursements, permission to mortgage a property, quantification of a penalty for non-disclosure, and orders compelling compliance with prior court orders.

The applicant husband opposed, arguing the respondent's non-compliance with parenting orders and his own financial difficulties.

The court dismissed the request for an advance on equalization due to significant uncertainty regarding the net family property calculation and property valuations.

However, it granted interim disbursements of $118,000 to the respondent to "level the playing field" for legal and expert fees, allowing the applicant to secure a loan against his unencumbered condominium to satisfy this payment.

The court declined to quantify the penalty or issue new compliance orders, directing these issues to be addressed at a case conference with the assigned case management judge.

Costs of the motion were fixed at $6,000 payable by the applicant to the respondent.

This decision addresses multiple motions in a contentious family law dispute marked by the respondent husband's persistent non-compliance with financial disclosure and preservation orders.

The husband sought to vary existing preservation orders, obtain updated financial statements from the applicant wife, and release funds from a Receiver.

The wife sought orders compelling the husband's compliance with prior orders, the release of funds for property expenses, and further disclosure.

The court dismissed the husband's motion in its entirety, citing his long history of deliberate disregard for court orders, including unauthorized asset transfers and a lack of complete financial transparency.

The court granted the wife's urgent motion, ordering the husband to remit proceeds from an undisclosed property sale to the Receiver and directing the Receiver to obtain the relevant legal file.

Additionally, the court ordered the release of $180,000 from the Receiver's trust to the wife for the payment of outstanding expenses related to the matrimonial home and other jointly-owned properties.

The Respondent brought a motion seeking joint decision-making responsibility and a shared 2-2-3 parenting time schedule for the child.

The Applicant opposed this, seeking sole decision-making and primary residence, with the Respondent maintaining the existing temporary parenting schedule.

The court dismissed the Respondent's motion, granting the Applicant temporary sole decision-making and maintaining the current parenting schedule.

The decision considered the high conflict, lack of trust, and outstanding criminal charges between the parties, concluding that a shared arrangement was not in the child's best interests at that time.

The Applicant sought costs on a full recovery basis after successfully striking the Respondents' pleading due to their bad faith conduct, including deliberate non-disclosure and non-compliance with court orders.

The Respondents argued for no costs or a significantly reduced amount.

The court awarded full indemnity costs, finding the Respondents' conduct warranted a punitive award, but reduced the claimed amount due to some excessive hours and the abandonment of a contempt motion.

The costs were awarded jointly and severally against all Respondents due to their concerted efforts to obstruct disclosure.

The applicant brought a motion to strike the pleadings of the respondent and two added respondents for persistent and deliberate non-compliance with numerous court orders.

These orders included requirements for financial disclosure, payment of spousal support and costs, and adherence to preservation orders related to the sale of the matrimonial home.

The court found the respondents' conduct to be in bad faith, rising to the level of fraudulent misconduct, aimed at frustrating the applicant's financial claims.

Given the egregious nature of the breaches and the futility of lesser remedies, the court granted the motion, striking the respondents' pleadings and allowing the applicant to proceed to an uncontested trial.

The court issued a costs endorsement following a motion where the respondent sought to introduce issues regarding a joint venture, a mortgage renewal, and the distribution of trust funds.

The applicant was successful in opposing the joint venture issue, while the respondent was successful on the mortgage renewal issue.

The court found that both parties had taken unreasonable positions on the issues they lost.

Given the divided success, the court declined to award costs to either party and cautioned them against taking unreasonable positions that hinder the resolution of the family law dispute.

In an ongoing family law dispute, the court addressed several issues regarding the court-ordered sale of eight properties.

The respondent brought a motion to vary the order to sell the properties, arguing they were no longer required to pay the applicant.

The court dismissed the motion, citing the respondent's continued obstructive conduct and the uncertainty of receivership costs and tax liabilities.

The court also established a mechanism for the applicant to obtain vesting orders if the respondent obstructed the sales, directed a trial of an issue regarding the validity of third-party mortgages, and refused to release sale proceeds to the respondent's company until the applicant was fully paid.

The respondent father brought a motion for an interim variation of an arbitral child support award, arguing that his child support obligations should be reduced to 'summer support' because two of the adult children were attending post-secondary school away from home.

The court treated the motion as one for an interim variation of a final support order, requiring the father to show a strong prima facie case, a clear case of hardship, urgency, and clean hands.

The court dismissed the motion, finding that the father failed to provide evidence that the mother's household expenses were significantly reduced or that the table amount produced a windfall, and therefore failed to establish a strong prima facie case that the standard Guidelines approach was inappropriate.

The applicant wife brought a motion for contempt sentencing and the appointment of an investigative receiver following the respondent husband's deliberate and flagrant failure to comply with multiple financial disclosure orders in a family law proceeding.

The respondent brought a motion to adjourn the sentencing and to sell certain properties.

The court dismissed the adjournment, fined the respondent $50,000 for contempt, and appointed an investigative receiver over his personal and corporate assets to determine his true financial circumstances.

The court also ordered the sale of several properties to fund the receivership and satisfy outstanding court orders, piercing the corporate veil to do so.

In a high-net-worth family law proceeding, the applicant brought a motion to find the respondent in civil contempt for failing to comply with multiple financial disclosure orders.

The court found that the respondent engaged in a deliberate and continuous course of conduct to delay disclosure, hide assets through corporate restructuring, and dissipate funds despite a non-dissipation order.

The court concluded beyond a reasonable doubt that the respondent wilfully and flagrantly breached the clear and unambiguous disclosure orders.

The respondent was found in contempt, with a sentencing hearing to be scheduled.

The appellant mother appealed a trial judge's order granting the respondent father sole custody/decision-making responsibility for their child and temporarily suspending the mother's contact, following a finding of parental alienation.

The appellant argued the trial judge misapplied the best interests test, failed to consider less drastic options, did not adequately weigh the child's views, and misapprehended evidence.

The Court of Appeal found no merit in these submissions, affirming the trial judge's findings of parental alienation and the drastic change in custody as being in the child's best interests, supported by the evidence.

The appeal was dismissed, and the appellant was ordered to pay appeal costs.

The moving party (mother) sought an extension of time to appeal a final parenting order and a stay of that order pending appeal.

The Court of Appeal for Ontario granted the extension of time, finding the three-day delay was minimal and an appeal right existed.

However, the court refused the stay, emphasizing that it was not in the child's best interests to disrupt the therapeutic program and living arrangements established by the trial judge's order, which aimed to rebuild the child's relationship with the father.