Brian R. Kelly

This decision concerns the costs of several disclosure motions in a family law proceeding.

The applicant, Johnny Vinken, sought full indemnity costs for three motions arising from the respondent’s, Heather Anne Earle’s, failure to provide complete financial disclosure.

The court found that while the applicant did not succeed on every request, he was successful in the substance of the motions, which was to secure proper disclosure.

The court awarded costs on a partial indemnity basis, totaling $16,401.51, to be paid at the end of the litigation, regardless of the ultimate outcome.

The applicant, Johnny Vinken, brought a motion for relief due to the respondent, Heather Anne Earle, failing to provide required financial disclosure and answers to undertakings in the context of a motion to change child support and s. 7 expenses for their now-adult children.

The court reviewed the history of disclosure orders and compliance, and ordered the respondent to provide outstanding documents and information within 30 days.

The court declined to strike the respondent’s pleadings, preferring resolution on the merits, and extended the time to set the matter down for trial by nine months.

The parties were encouraged to resolve costs, with a timetable for written submissions if necessary.

The Trustee in Bankruptcy sought an order for the repayment of $20,005.37 from the undischarged bankrupt and her son, representing an overpayment of surplus funds due to an erroneous interest calculation by the Office of the Superintendent in Bankruptcy.

The funds, initially paid to the bankrupt, were subsequently transferred multiple times and were ultimately held in an account controlled by the son.

The court found that the funds were paid under a mistake of fact and that neither the bankrupt nor her son had a legal or equitable right to retain them.

The court granted the Trustee's application, ordering the repayment of the funds.

The applicant sought the release of a settlement conference transcript to impeach the respondent's credibility in a motion to change a final order regarding spousal support.

The court dismissed the applicant's motion, affirming the strong presumption of confidentiality for settlement conferences under Rule 17(23) of the Family Law Rules.

The court held that only extraordinary circumstances, typically involving safety concerns, would warrant the release of such transcripts, and no such circumstances were demonstrated.

This trial concerned a motion to change a 2006 final order regarding child and spousal support.

The Father sought to terminate child and spousal support and obtain reimbursement for overpayments.

The Mother sought continuation of support, retroactive s.7 expenses, and other reimbursements.

The court found the Father owed significant retroactive child support due to non-disclosure of income, but terminated ongoing child and spousal support.

The Mother was granted retroactive s.7 expenses from October 2018, but was ordered to reimburse the Father for spousal support overpayments.

The Mother's claims for tax penalty reimbursement and missed parenting time compensation were dismissed.

The parties brought competing interim motions concerning child and spousal support.

The applicant sought support based on his CPP disability income, while the respondent sought to impute income to the applicant due to alleged underemployment.

The court declined to impute income to the applicant at the interim stage, citing an incomplete and untested evidentiary record.

Interim child and spousal support were ordered based on the parties' reported incomes, and section 7 expenses were apportioned.

A disclosure order was also granted by consent.

The defendant High Tide Inc. brought a Rule 21 motion to dismiss the action against it by Highland Cannabis Inc., alleging the claims were frivolous, vexatious, and an abuse of process, and that the pleaded torts of intrusion upon seclusion and conversion were not available.

The court found that the claims against High Tide Inc. were frivolous and vexatious, and that neither the tort of intrusion upon seclusion nor conversion applied to the facts of a data breach involving business sales data.

The motion was granted, and the action against High Tide Inc. was dismissed.

This is a costs endorsement following the dismissal of an urgent motion brought by the applicant, Daniel Kirk Howard, to set aside a prior endorsement by Justice Tweedie, alleging fraud on the part of the respondent, Teaha Adele Howard.

The court dismissed the fraud allegation in a previous endorsement, finding the evidence unconvincing.

In this costs decision, the court found that the applicant's unsubstantiated fraud allegation constituted bad faith, attracting full recovery costs for the respondent.

Despite the respondent's entitlement to full recovery, the court applied principles of reasonableness and proportionality, reducing the claimed amount.

The applicant was ordered to pay $17,500 inclusive of HST and disbursements to the respondent.

The appellant, Belmar Roofing Inc., appealed a trial judgment finding them liable for breach of contract and negligence for a defective roof installation.

The appeal primarily challenged the trial judge's reliance on the respondent's engineer's expert evidence, which the appellant argued was contradicted by a draft report and exaggerated the roof's danger.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's acceptance of the engineer's testimony, as the engineer adequately explained the omission in the final report and maintained his opinion on the roof's hazards.

The court found ample evidence to support the trial judge's conclusions and no basis to interfere with the damages assessment.

The applicant brought an urgent ex parte motion seeking a temporary order to restrain the respondent from depleting his assets.

The parties had previously agreed to submit all issues to mediation-arbitration.

The applicant discovered the respondent had unilaterally withdrawn $1.25 million from an account that required dual signatures.

The court granted the temporary preservation order under the Arbitration Act, noting that an arbitration award would likely not be enforced by financial institutions without a court order, and scheduled a return date for the motion.

Following a family law trial, the applicant mother sought costs of $92,297.84 on a full indemnity basis, arguing the respondent father acted in bad faith and unreasonably.

The court found divided success on most issues except child support, where the mother was wholly successful.

While the court did not find the father acted in bad faith, it concluded he behaved unreasonably by continually denying family violence, which lengthened the trial.

The court ordered the father to pay $45,000 in costs, with $18,459.57 designated as enforceable by the Family Responsibility Office.

The applicant mother and respondent father sought a final determination on the parenting schedule and child support for their five-year-old son.

The mother sought primary care and a restricted schedule for the father due to a history of severe domestic violence, for which the father had been criminally convicted.

The father sought equal parenting time, arguing he was a capable parent and the mother was alienating him.

The court found that the father had committed family violence, lacked insight into its impact, and harboured ongoing animosity towards the mother, making an equal parenting schedule contrary to the child's best interests.

The court ordered the mother's proposed parenting schedule, alternating Easter weekends, and imputed income to the father for the purpose of calculating ongoing child support.

Mr. Towing Inc. appealed a Small Claims Court judgment that dismissed its action for additional vehicle storage charges against Mercedes-Benz Financial Services Canada Corporation (MBFS).

The trial judge found that Mr. Towing's lien for storage was limited to the initial 60-day period due to its failure to provide written notice to MBFS as required by the Repair and Storage Liens Act (RSLA).

The Divisional Court upheld the trial judge's decision, confirming that Mr. Towing was required to provide notice and that its lien was limited to 60 days of unpaid storage charges, which had already been paid by the driver's insurer.

The appeal was dismissed, and MBFS was awarded costs.

The parties delivered written submissions on costs following a trial regarding child support.

The respondent sought partial indemnity costs of $15,000, while the applicant sought full recovery costs of $39,900.78 or, alternatively, that each party bear their own costs due to divided success.

The court found that no costs should be awarded for the period prior to a March 2018 consent order, as costs were not reserved.

Although the respondent was successful on the threshold issue of child support, the applicant was more settlement-focused and made reasonable offers to settle.

The court concluded that the presumption of costs to the successful party was rebutted and ordered each party to bear their own costs.

The applicant brought a motion to change seeking sole custody and child support.

The parties settled the parenting issues, agreeing to a week-about shared parenting schedule.

The remaining issue was child support, specifically whether the respondent met the 40% threshold under section 9 of the Federal Child Support Guidelines.

The court found that the time the children spent in school should be considered neutral, as both parents shared responsibility for the children during school hours.

Consequently, the respondent met the 40% threshold, and the applicant, having the higher income, was ordered to pay set-off child support and arrears.

An appeal concerning the division of proceeds from the sale of a family residence held as joint tenants by parties in a common law relationship.

The appellant contributed $5,000 to the purchase price while the respondent contributed $116,000.

The trial judge found that the appellant failed to rebut the presumption of resulting trust and that there was no unjust enrichment.

The Court of Appeal upheld the trial judge's decision, finding no basis to interfere with the findings regarding the presumption of resulting trust and the unjust enrichment analysis.

The appellants appealed a trial judgment concerning a business purchase agreement that was terminated before completion.

The trial judge found that a $100,000 deposit paid by the appellant toward a $500,000 purchase price was to be retained by the respondent pursuant to a termination agreement entered into by the parties.

The trial judge found no legal fault on either side and concluded that the parties' intention in the termination agreement was that the deposit remain with the respondent.

The Court of Appeal found no palpable and overriding error in the trial judge's interpretation and dismissed the appeal.

The court issued a costs ruling following successful motions by the applicant.

The applicant was found to be fully successful and entitled to costs.

The respondent's arguments for deductions, including legal fees incurred prior to a specific date and an earlier accepted offer, were considered.

The court awarded costs of $16,293.37 to the applicant, to be deducted from the respondent's share of the matrimonial home equity.

The appellants owned property adjacent to the respondents' property in Fergus, Ontario.

The respondents held an easement over part of the appellants' property providing interior access to the upper floors and roof of their own building.

The respondents sought to renovate their property for commercial and residential use, which included widening a third-floor door frame to create a fire exit and replacing doors to comply with building and fire regulations.

The appellants interfered with the easement and the respondents applied for declaratory and injunctive relief.

The application judge declared the easement valid and ordered the appellants not to interfere with the respondents' rights.

The appellants appealed, arguing the renovations impermissibly changed the use of the easement and that ancillary rights were void under the rule against perpetuities.

The Court of Appeal dismissed the appeal.

This addendum to a prior judgment finalized the calculation of retroactive spousal support, child support, and post-separation expense credits, resulting in a net payment to the applicant.

The court also determined the issue of costs, finding the applicant entitled to costs due to her success on substantive issues and reasonable attempts to settle.

An award of $90,000 in costs, inclusive of HST and disbursements, was ordered to be paid to the applicant from the respondent's share of the matrimonial home proceeds.