Brian Kelly

The appellant father appealed a trial decision that altered a consent order regarding decision-making responsibility for his daughter.

The trial judge found a material change in circumstances due to ongoing parental conflict and assigned sole decision-making responsibility for schooling, health care, and extracurricular activities to the respondent mother.

The Court of Appeal dismissed the appeal, finding no evidence that the trial judge relied on improperly admitted documents and concluding that her factual findings were supported by the record and entitled to deference.

The applicant father brought a motion to change a 2014 consent order for shared custody, seeking sole decision-making and changes to parenting time, as well as imputing income to the respondent mother and excluding his 2016 capital gains from child support calculations.

The court found a material change in circumstances due to the complete failure of the shared parenting regime and high conflict between the parties.

The court awarded sole decision-making responsibility for major healthcare, education, and extracurricular decisions to the respondent mother, subject to consultation.

The existing week-about parenting schedule was maintained.

The court declined to impute income to the respondent, finding her educational upgrading reasonable, but allowed the applicant to exclude a non-recurring 2016 capital gain from his income for support purposes.

The respondent father brought a motion to vary the interim parenting schedule to a 2-2-3 schedule.

The applicant mother brought a cross-motion to maintain the current schedule and requested an updated voice of the child report or the involvement of the Office of the Children's Lawyer.

The court reviewed a previous voice of the child report which indicated the children struggled with short transitions.

Finding that the status quo was not in the children's best interests, the court granted the father's motion to implement a 2-2-3 schedule to minimize transitions and dismissed the mother's request for further assessments.

Following a 25-year marriage, the parties proceeded to trial on issues of child and spousal support, income determination, reimbursement of expenses, and occupation rent.

The court imputed the applicant's income at $30,000 due to intentional under-employment and set the respondent's income at $171,398, denying his request to deduct employment expenses due to insufficient evidence.

The applicant was awarded indefinite spousal support of $3,600 per month and child support of $1,453 per month.

The respondent was awarded $16,576 for post-separation expenses, but his claim for occupation rent was dismissed as the circumstances were not exceptional.

The moving party (respondent in the main action) brought a pre-trial motion seeking an order that his valuation experts not be disqualified due to a perceived conflict of interest raised by the responding party.

The responding party argued the motion judge lacked jurisdiction to bind the trial judge's discretion on admitting expert evidence.

The court agreed, finding that the trial judge acts as the gatekeeper for admitting evidence and a pre-trial ruling could leave the trial judge in an untenable position if cross-examination revealed a conflict.

The motion was dismissed.

The defendant brought a motion for summary judgment seeking dismissal of the action against her.

The plaintiff had advanced $250,000 to a co-defendant for investment purposes and alleged losses after the funds were traded and lost.

The moving defendant was a joint holder of a bank account through which some of the funds briefly passed, but there was no evidence she participated in the transfers, trading activity, or received any benefit from the funds.

The court applied the summary judgment framework under Rule 20.04 and the “full appreciation test” from Combined Air Mechanical Services v. Flesch.

Finding no evidence supporting liability or a viable tracing claim, and determining the Fraudulent Conveyances Act claim was premature, the court held there was no genuine issue requiring a trial and dismissed the action against the moving defendant.