Birkin James Culp

In a civil costs decision following settlement of the main action, one defendant sought partial indemnity costs against the co-defendant for both the action and a crossclaim.

The court treated the hearing as a motion for costs and applied the principles of fairness, reasonableness, and proportionality under the Rules of Civil Procedure and s. 131(1) of the Courts of Justice Act.

The court found the responding defendant's litigation position and delayed acceptance of the offer to settle caused unnecessary continuation of the proceeding and additional preparation costs.

While not granting the full amount requested, the court awarded an all-inclusive costs amount reflecting proportionality and the parties' relative success.

An appeal and cross-appeal concerning a family law matter involving a teenager who left his adoptive parents' home to live with the parents of his girlfriend.

The original applicants (the girlfriend's parents) sought decision-making authority and child support from the adoptive parents.

The lower court found the applicants lacked standing as "parents" under the Family Law Act but appointed them as litigation guardians without compliance with procedural requirements.

The appellate court upheld the finding of no standing but found the appointment of litigation guardians was made without jurisdiction, as the applicants had not complied with the Rules of Civil Procedure.

The court dismissed the application and set aside the litigation guardian appointment, while permitting the now-adult child to pursue retroactive support independently.

The court considered an application by Wayne Biggar for spousal support and unequal division of net family property following the breakdown of his marriage to Donna Stratford (nee Biggar).

After reviewing the parties’ financial circumstances, contributions, and the evidence at trial, the court granted Mr. Biggar’s claim for spousal support on a non-compensatory basis, ordering a lump sum payment of $85,000 to be paid from Ms. Stratford’s share of the proceeds of sale of the matrimonial home.

The court dismissed Mr. Biggar’s claim for unequal division, finding that the remaining proceeds of sale should be divided equally, subject to adjustments for the spousal support award and a prior judgment against Mr. Biggar.

The court also found that, although an equalization payment was technically owed by Mr. Biggar, equitable considerations justified reducing it to zero.

This endorsement addresses costs following a child protection trial where the primary dispute was between paternal (A.H. and B.H.) and maternal (D.T. and A.T.) grandparents for custody of a child, M. The paternal grandparents, who were ultimately granted deemed custody, sought costs against the maternal grandparents.

The court found that while the maternal grandparents had a legitimate case, their conduct, including obstructing access and breaching court orders, was unreasonable and unduly prolonged the proceedings.

Applying principles that allow for costs against parents/parties in child protection cases for unreasonable conduct, the court awarded $3,000 in costs to the paternal grandparents to sanction the maternal grandparents' behaviour and partially indemnify the successful litigants.

The applicant mother sought to change the surnames of her two young children from the father's surname to her own, or a hyphenated surname, and to add a forename, relying on a temporary decision-making order.

The respondent father opposed, seeking to continue a stay on the name change applications until a final determination at trial.

The court dismissed the applicant's motion, finding that "lawful custody" under the Change of Name Act should not be interpreted as temporary decision-making responsibility for the purpose of unilaterally changing a child's name.

The court emphasized that name changes are significant incidents of custody requiring careful consideration of the child's best interests at a final hearing, not based on a temporary order or a parent's personal feelings.

The respondent's motion to stay the name change applications was granted in part, and the applicant was ordered to pay costs.

This case concerns an interim mobility motion where the respondent mother sought to relocate the child's primary residence from Brantford, Ontario, to Newfoundland.

The applicant father opposed the relocation and sought the child's return to Brantford and primary residence.

The court found that it was not in the child's best interests to be relocated, emphasizing the importance of maintaining the child's existing relationships and the shared parenting status quo.

The respondent's motion for relocation was dismissed, and an interim order was granted placing the child in the primary care of the applicant father in Brantford.

The applicant father sought sole decision-making authority for his 9-year-old daughter regarding COVID-19 vaccination.

The respondent mother opposed, citing the child's long-standing opposition to all vaccinations, consistent with the mother's beliefs.

The court dismissed the motion, finding it was not in the child's best interests at present to compel vaccination on an interim basis, considering the child's views, the long-standing status quo of non-vaccination, and the lack of sufficient urgency demonstrated by the applicant.

The court also ordered the Office of the Children's Lawyer to prepare a s. 112 report given the ongoing dispute over vaccination and the mother's request for increased parenting time.

The paternal grandmother, S.V., moved to be added as a party to child protection proceedings concerning her grandchild, A.M., and for access.

The court found that S.V. met the definition of "care provider" under the federal Act Respecting First Nations, Inuit and Métis Children Youth and Families, and therefore had a right to party status from the outset.

The motion to add S.V. as a party was granted, but her request for access was dismissed without prejudice as she lacked standing to seek substantive relief prior to being added as a party.

The court noted the agency's failure to name S.V. as a party initially caused prejudice.

This case involved two motions in a Status Review proceeding under the Child, Youth and Family Services Act.

The Children's Aid Society sought to change the placement of child A.A-L.C. to the maternal grandmother, V.C., while the respondent father, J.T., sought placement of his biological child, J.C-T., in his care.

Both children were currently in the care of their mother, A.C., under supervision orders.

The court dismissed both motions, finding that despite the mother's non-compliance with supervision terms and some inappropriate behavior, there was insufficient evidence to demonstrate a change in circumstances requiring the children's removal from her care, particularly given the lack of evidence of direct harm to the children and the importance of sibling bonds.

The Children's Aid Society brought a motion for summary judgment seeking a final order for the extended care of twin children and specific access arrangements, based on the mother's history of mental health issues, domestic violence, and substance misuse.

The court found the children to be in continuing need of protection.

However, it dismissed the Society's motion for summary judgment regarding the disposition, finding a genuine issue for trial.

The judge emphasized the mother's recent significant progress in addressing protection concerns, including during her pre-trial detention, and cautioned against unduly emphasizing the length of time children have been in care when court delays are caused by the COVID-19 pandemic.

The matter will proceed to trial on the issue of disposition.

The Children's Aid Society of Brant brought a motion for summary judgment seeking extended society care for two children, J.G.P.G. and J.B.G., following the termination of an interim care order.

The respondent mother, M.G., did not file responding materials, and the respondent father, F.B., though noted in default, was permitted to make submissions.

The court granted the Society's motion, finding no genuine issue for trial regarding the children's permanent placement, and ordered extended society care with specified access for both parents and the children's older sister, D.G.

This is a child protection matter under Part V of the Child, Youth and Family Services Act, 2017.

Following an appeal that remitted the issue of access back to trial, the court determined whether the respondent father should be granted access to two children in the extended care of the Children's Aid Society.

The respondent father withdrew his claim for access mid-trial after hearing evidence from the Society.

The court applied the new best interests test established in recent Court of Appeal decisions and determined that access was not in the children's best interests, considering their trauma histories, emotional development, stability in their prospective adoptive placement, and the absence of a meaningful relationship with the respondent father.

A temporary care and custody hearing under the Child, Youth and Family Services Act regarding interim placement of two children.

The Children's Aid Society sought protection due to domestic violence, substance abuse, emotional harm, and questionable parental decision-making.

The father sought placement of the children in his care with supervision; the mother conceded she was not ready for return of the children.

The court determined that the least intrusive order was for the children to remain with the maternal grandparents under supervision, with the father's access discretionary to the Society and the mother's access structured but with supervision at the Society's discretion.

A child protection agency brought an application seeking temporary care and custody of two children.

The respondent mother challenged the court's jurisdiction, arguing that the agency failed to comply with statutory timelines for bringing the matter before the court.

The central issue was whether a customary care agreement was validly executed and, if not, whether the agency's failure to commence proceedings within five days of removing the children from the mother's care resulted in a loss of jurisdiction.

The court found that the consent to the customary care agreement was invalid due to lack of voluntariness and absence of independent legal advice, and that the mother's subsequent revocation of consent was clear and unequivocal.

The court concluded that the agency's failure to bring the matter before the court within the statutory five-day period resulted in a loss of jurisdiction.

This is a motion to dismiss a child protection application for want of jurisdiction.

The respondent parents challenged whether the court retained jurisdiction to hear the protection application following alleged failures by the Children's Aid Society to comply with statutory prerequisites for removal of children to a place of safety.

The parents argued that two removals—on April 30, 2018 and June 1, 2018—were warrantless removals without proper grounds and that the Society failed to bring the matter to court within the required five-day statutory period.

The court found that while the April 30 removal lacked proper consent and statutory authority, the children were returned to parental care on May 15, 2018, creating a discrete event.

The June 1 removal was brought to court within the statutory timeframe and was supported by exigent circumstances.

The court dismissed the motion to dismiss, finding jurisdiction was retained.

This trial concerned a mother's request to relocate with her two daughters and the father's opposition, coupled with his request for sole custody.

The court found a material change in circumstances and conducted a fresh inquiry into the children's best interests.

The court determined that the mother's irrational actions, including influencing the children's views and interfering with access, were detrimental to the children's well-being and their relationship with their father and brother.

Consequently, the court denied the mother's request to relocate, transferred sole custody of the daughters to the father, and extinguished child support arrears owed by the father.

The applicant sought substantial indemnity costs for a period of over a year, following a successful motion to fix child support to the table amount.

The court, applying Family Law Rule 24(10), determined that costs should be decided promptly after each step and restricted the award to the specific issue argued on August 9, 2016.

Given the intertwining of evidence with a broader motion to change, the court awarded the applicant partial indemnity costs for three hours of oral argument and preparation, totaling $847.50, reserving other costs to the judge finally disposing of the motion to change.

This is a child protection trial under Part III of the Child and Family Services Act involving three children.

The Children's Aid Society sought findings of protection and Crown Wardship for all three children.

The court found that the mother inflicted physical harm on the children through hitting them with a stick and other harsh discipline, causing complex trauma and emotional harm.

The court made findings of protection for all three children.

For the two older children, the court ordered Crown Wardship with no access to the mother.

For the youngest child, the court placed him in the custody of his father with no access to the mother, finding that the father was providing appropriate care and that the child was thriving in his care.

The respondent, Jeffrey, brought a motion to change a 2012 order, seeking sole custody of the children, termination of spousal support, payment of extraordinary expenses, and adjustments to the matrimonial home payout.

The applicant, Denise, sought dismissal of these motions.

The court dismissed all of the respondent's motions, finding no material change in circumstances to warrant changes to custody or spousal support.

The court found the respondent's allegations of the applicant's involvement with biker gangs and drug use to be unfounded and based on incredible witness testimony.

The court also imputed income to both parties at their previous levels, finding no material change in financial circumstances.

The court declined to grant the respondent credit for mortgage payments on the matrimonial home or for extraordinary expenses he unilaterally incurred.

A mid-trial motion by the respondent mother to amend her pleadings to include a claim for placement of the subject child with the maternal great aunt was denied.

The child had been in the care of the Children's Aid Society since 2013 following removal due to domestic violence and substance abuse concerns.

The mother had not previously advanced the kinship care plan despite multiple opportunities to do so, including at trial management conference and when filing amended pleadings.

The court found that granting the amendment would require a substantial adjournment, necessitate reopening the Society's case, and result in significant delay prejudicial to the child's need for permanency.

The court emphasized the importance of procedural efficiency and the child's best interests in child protection proceedings.