Ben Fortino

The decision addresses a high-conflict parenting dispute involving allegations of sexual abuse and parental alienation.

The court finds that the mother, Melanie Lynn Grillo, alienated the child, Zaria, from her father, Edwin Adam Lawrence Newton, and orders an immediate change of primary residence to the father, with the mother’s parenting time to be expanded at the father’s discretion.

The court finds the abuse allegations unsubstantiated and details the evidence of alienation, referencing leading case law on parental alienation and the best interests of the child.

The applicant mother brought a motion alleging the respondent father breached multiple terms of a final consent order, specifically regarding his failure to engage in parenting coordination and his attendance at the children's school sporting events.

The court found the father breached the order by failing to participate in parenting coordination and ordered him to retain a coordinator and pay costs thrown away.

However, the court dismissed the allegations regarding his attendance at school sporting events, finding the order permitted his attendance and the provision excluding extended family members was unenforceable.

The father sought costs following a 28-day trial regarding a Motion to Change Final Order and related motions.

The court found that the father was overwhelmingly successful on the parenting issues, which consumed 85% of the trial time, while the mother was successful on the child support issues.

The court concluded that the mother's conduct throughout the litigation, including her repeated unsubstantiated allegations of abuse and alienation of the child, amounted to bad faith.

The father was awarded full recovery costs for the parenting issues, offset by the mother's costs for the child support issues.

The court ordered the mother to pay $138,157 in costs, structured as a $50,000 lump sum payment with the balance to be set off against the father's child support arrears and ongoing child support obligations.

The Respondent father brought a motion to change a previous order, seeking joint decision-making with final say on health matters and equal parenting time for the parties' child.

The Applicant mother sought to maintain primary residence and final decision-making power.

The court found a material change in circumstances and, after considering the child's best interests, ordered equal parenting time on a 2-2-3 schedule.

Decision-making authority was split, with the father having final say on health matters and the mother on education matters, in recognition of their communication issues and respective capabilities.

The court also mandated the use of a communication app and ordered compliance with previous orders regarding documentation.

The applicant sought to enforce a settlement agreement, claiming he accepted an offer to settle attached to the respondent's settlement conference brief.

The respondent opposed, arguing the offer was outdated and implicitly withdrawn by a subsequent, less favorable offer.

The court found that while offers attached to settlement briefs are enforceable, the later offer, which left child support unresolved, implicitly withdrew the earlier, more comprehensive offer.

Consequently, the applicant's acceptance of the original offer did not form a binding contract, and his motion was dismissed.

The mother brought a motion to change a final parenting order, seeking to restrict the father's parenting time to supervised visits based on numerous allegations of abuse and neglect.

The father sought a resumption of his parenting time, a declaration that the mother breached the existing order, and a retroactive reduction in child support.

Following a lengthy trial, the court found that the mother's allegations were unsubstantiated and that she had engaged in a pattern of parental alienation and family violence by repeatedly subjecting the child to medical and child protection investigations.

The court ordered a gradual resumption of the father's parenting time, progressing to alternate weekends and equal holiday time.

The court also ordered the mother to undergo a psychiatric assessment and engage in parenting coaching.

The father's claim for a retroactive reduction in child support was dismissed due to a lack of effective notice.

The mother brought a motion to change to implement child and spousal support formulas based on the father's significantly increased income, which reached $2.29 million in 2019.

The father argued the table amount for child support was inappropriate under section 4 of the Federal Child Support Guidelines and sought to vary the spousal support order to exclude the mother from sharing in his post-separation income increase.

The court found the table amount for child support was inappropriate as it would result in an unwarranted capital transfer, capping the father's income for child support purposes at $500,000.

However, the court dismissed the father's request to vary spousal support, finding the increase in his income did not constitute a material change sufficient to warrant varying the existing consent order.

This endorsement addresses two motions in a family law dispute concerning child access, child support, and property division.

The respondent father sought expanded unsupervised access, while the applicant mother sought to maintain supervised access and an advance from matrimonial home proceeds.

The court ordered a graduated transition to unsupervised access for the father, found child support arrears, directed payment of these arrears from the father's share of the matrimonial home proceeds, and ordered partial release of funds from the matrimonial home proceeds to both parties, with a larger amount to the mother.

The motion was adjourned for further review of access and costs submissions.

The applicant and respondent both brought short motions.

Due to time constraints and outstanding productions, the court only heard submissions on temporary without prejudice child support.

The respondent, a self-employed contractor, had not paid child support since separation.

The court estimated the respondent's income by adding back certain business expenses to his net income, determining an annualized gross income of $52,500 and an income for child support purposes of $36,750.

The court ordered the respondent to pay temporary child support of $546 per month and adjourned the remaining matters to a long motion.

The applicant sought to change a temporary access order, while the respondent sought to expand his access.

The court considered the best interests of the children, the impact of COVID-19, and the parental conflict.

The court maintained the existing access times but changed the supervision location to the paternal grandmother's home, finding the applicant's concerns about the paternal grandmother's health unsubstantiated and her "investigation" of the respondent's personal life to be overprotective and controlling.

The court emphasized the need for parents to focus on allowing children to love both parents and adhere to COVID-19 protocols.

Following the dismissal of the respondent's motion to reinstate his struck pleadings, the court determined the costs payable to the successful applicant.

The court found the respondent acted in bad faith by failing to comply with financial disclosure orders, warranting full recovery costs under Rule 24(8) of the Family Law Rules.

However, the court reduced the quantum due to the applicant's counsel's unreasonable delay in responding to communications and excessive hours claimed.

The respondent was ordered to pay $15,000 in costs.

In an ongoing estate litigation matter, the court determined costs for several preliminary steps, including the determination of an estate asset, production of solicitor files, an abandoned consolidation motion, and case management conferences.

The court awarded costs to the applicant and other beneficiaries, payable largely by the former estate trustees personally due to their improper conduct and conflicts of interest, with some portions payable by the estate.

The respondent husband brought a motion to set aside an order striking his pleadings and to reinstate them in a family law proceeding.

His pleadings had been struck due to non-compliance with financial disclosure orders, with a condition that he could move to reinstate them if he complied by a specific date.

The court found that while the respondent made some efforts to comply, he failed to meet the clear deadlines and did not bring his motion to reinstate until over a year later, after the applicant had filed for an uncontested trial.

The motion to reinstate pleadings was dismissed due to the respondent's significant delay and continuous disregard for court orders.

The mother sought costs of $73,127.51 following a successful trial on a Motion to Change regarding child support for an adult disabled child.

The father argued there should be no costs order due to his limited ability to pay.

The court found the father acted unreasonably by failing to provide budgetary information until mid-trial and by advancing numerous claims that were later withdrawn or dismissed.

Considering the father's limited ability to pay and the need to avoid negatively impacting his ability to care for the child, the court awarded the mother $25,000 in costs.

The court declined the mother's request to set off the costs against ongoing child support.

The father brought a motion to change a final order to seek retroactive and ongoing child support for the parties' 25-year-old severely disabled son, who moved into his care in 2014.

The court found a material change in circumstances and that the son remained a child of the marriage.

The court declined to order retroactive support due to the father's delay and failure to provide a budget.

For ongoing support, the court applied section 3(2)(b) of the Child Support Guidelines, apportioning the son's expenses not covered by government funding between the parents based on their respective incomes, resulting in the mother paying $1,167.52 per month.

The respondent brought a motion for leave to appeal a case conference order made in a family law proceeding.

At the case conference, the judge ordered the matrimonial home listed for sale and froze the respondent’s RRSP except for payments required to maintain the mortgage.

The moving party argued the orders were made without instructions or consent and were beyond the court’s authority at a conference under Rule 17(8) of the Family Law Rules.

The court held that notice of the requested orders had been given and that the evidence before the conference judge justified asset preservation orders.

The court found no reason to doubt the correctness of the order and dismissed the motion for leave to appeal.

A contractor commenced an action to enforce payment of the balance owing under a contract for the supply and installation of polyurethane spray foam insulation at an industrial property.

The defendants refused payment alleging extensive overspray damage to equipment and asserting that the balance had been forgiven due to deficient workmanship.

The court found that significant overspray occurred and that the contractor’s workmanship was substandard, but rejected the alleged agreement to forgive the balance and found the defendants had continued using the equipment without remediation while preventing the contractor from attempting cleanup.

Applying a reasonable reduction to account for the deficiencies, the court awarded the contractor a reduced balance of the contract price and dismissed the defendants’ counterclaim.

The contractor was also granted a construction lien for the amount of judgment and partial indemnity costs.

Following a successful motion removing counsel for the insurer due to a conflict of interest arising from representation in both accident benefits and tort proceedings, the court addressed costs.

The insurer argued that delay by the moving party in raising the conflict should disentitle it to costs because significant work had already been completed by counsel who would need to be replaced.

The court rejected this argument, finding the conflict arose from the insurer’s failure to maintain separation between accident benefits and tort files.

Applying Rule 57.01 of the Rules of Civil Procedure and principles from appellate jurisprudence on reasonableness of costs, the court held that the time and rates claimed were reasonable.

The moving party was awarded costs on a partial indemnity basis.

Addendum to a prior decision correcting the wording of an order concerning the removal of counsel for a statutory third party insurer.

The original judgment was amended to clarify that the motion sought removal of the law firm representing the statutory third party, rather than the individual defendant driver.

The court ordered that the law firm be removed as solicitors of record for the statutory third party insurer.

The litigation guardian was permitted to make written submissions on costs, with the insurer given time to respond.

The plaintiff brought a motion seeking removal of a law firm acting for an insurer as statutory third party in a tort action arising from a motor vehicle accident.

The insurer also provided accident benefits coverage to the plaintiff and retained the same firm to act in both the accident benefits claim and the defence of the tort action.

The firm used documents and information obtained from the plaintiff in the accident benefits claim to defend the tort action against the insured driver.

The court held that this dual representation created a clear conflict of interest, particularly where no effective information barrier existed between the two matters.

The firm’s conduct contravened principles governing conflicts of interest and the protection of confidential information between insurer and insured relationships.

The firm was removed as solicitors of record for the insurer in the tort action.