Ashley H. McInnis

The moving party brought a motion for leave to appeal an order dated October 12, 2023.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 to the responding party.

The respondent mother brought a motion for the immediate return of her child, Brianne, to a long-standing week-about time-sharing arrangement, as per a final consent order.

The applicant father resisted, alleging abuse by the mother and citing Brianne's stated wishes to remain with him, including threats of self-harm or running away.

The court found no material change in circumstances since the final order and no sufficiently compelling circumstances to warrant an interim change.

The judge expressed concerns about the father's credibility regarding the alleged abuse and his failure to enforce the existing court order, emphasizing a custodial parent's positive obligation to ensure a child complies with access orders.

The mother's motion was allowed, and the father's counter-motion for a change in access was dismissed, with a transition schedule established for Brianne's return to shared care.

The Applicant sought costs following a successful motion to restore shared time-sharing for their child, which the Respondent had unilaterally altered due to COVID-19.

The court found the Respondent's actions unreasonable but not in bad faith.

While the Applicant's offer to settle aligned with the main outcome, it did not fully meet the criteria for full recovery costs under Rule 18(14) due to an unaddressed issue.

Considering the Respondent's financial circumstances and the impact on the child, the court awarded partial recovery costs to the Applicant.

The Applicant father brought an urgent motion concerning the care of the parties' 10-year-old child, Logan, after the Respondent mother unilaterally changed the shared parenting arrangement following the father's self-quarantine due to COVID-19.

The father sought a return to the pre-existing shared custody status quo, while the mother sought a return to an earlier arrangement where the father had less time.

The court found that the mother failed to meet the high onus required to disturb the status quo on an interim motion, as her COVID-19 concerns had evaporated and her other complaints were long-standing.

The court ordered a return to the shared parenting schedule that was in place prior to the father's self-quarantine.

The father's request to provide childcare during the mother's working hours was dismissed, as was the mother's request to revert to an older access schedule.

The court also ordered Office of the Children's Lawyer involvement to determine the child's views and preferences.

The respondent brought a motion for partition and sale of the jointly owned common residence.

The applicant opposed, arguing sole equitable ownership due to extensive renovations and raising procedural objections regarding the motion's jurisdiction under the Family Law Rules.

The court affirmed its jurisdiction to hear motions for partition and sale under Rule 14 of the Family Law Rules, even for final orders, and dismissed the applicant's procedural arguments.

The motion for partition and sale was granted, as the applicant failed to demonstrate the high threshold of malicious, vexatious, or oppressive conduct required to resist the sale.

The net proceeds from the sale were ordered to be paid into court or trust.

Appeal from a trial judgment setting aside a separation agreement due to material non-disclosure of a significant asset (a client book valued at $120,000).

The trial judge awarded equalization payments, increased child support, but denied spousal support.

The appellant challenged the valuation of the book, the quantification of the respondent's income for child support purposes, and the dismissal of her spousal support claim.

The Court of Appeal allowed the appeal in part, finding errors in the trial judge's assessment of income (removal of 15% business expense deduction and three-year averaging methodology), awarding retroactive child support for 2010, remitting 2011 child support arrears for determination, and awarding non-compensatory spousal support for ten years based on the respondent's misrepresentations regarding income and assets.

The applicants sought declarations that the respondent insurer had a duty to defend and indemnify them for an accident, and that an OPCF 28A excluded driver endorsement was invalid and ineffective.

The court found that the insurer failed to comply with section 232(3) of the Insurance Act by not delivering a copy of the endorsement to the insured.

Furthermore, the specific endorsement signed did not apply to the vehicle involved in the accident, as it was not listed and the endorsement lacked a catch-all clause for added vehicles.

The court granted the applicants' requested declarations.

The appellant appealed a summary judgment order dismissing its claim for breach of a non-competition covenant.

The appellant alleged the respondent, as a director of a holding company, supplied a refrigerated truck to a competitor for free.

The motion judge found evidence that rental payments were being made for the truck, which permitted the rejection of the appellant's claim.

The Court of Appeal found no error and dismissed the appeal.

The appellant appealed an order regarding the schooling of the parties' children.

The appellant conceded that home-schooling was no longer a live issue, and the only outstanding issue was the choice between public and private schooling for the upcoming academic year, which would be raised at a scheduled case conference.

The Court of Appeal dismissed the appeal, noting with reluctance that they heard the appeal despite the appellant's admission of being in breach of the motion judge's order requiring the children to be sent to Eastview Collegiate in Barrie.

Costs were awarded to the respondent.