Brian R. Kelly

During a family law trial involving mobility and allegations of family violence, the applicant father sought to introduce evidence regarding a hidden bedroom camera.

He had previously refused to answer questions about the camera during pre-trial questioning, citing an active criminal proceeding for voyeurism.

The respondent mother objected to the evidence as trial by ambush.

The court compared the Family Law Rules with the Rules of Civil Procedure, noting that Family Law Rule 20(20) creates a presumption of admissibility unless harm is demonstrated.

Finding that the mother would suffer prejudice but not sufficient harm to exclude the evidence, the court admitted the testimony.

However, the court ordered the father to pay $2,500 in costs and a $2,500 fine for his strategic failure to correct his refusal prior to trial.

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 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 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 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 moving party brought a motion for leave to appeal an order dated September 5, 2023.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party fixed at $6,000.

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.

The parties brought competing motions regarding the jointly owned matrimonial home.

The father sought exclusive possession, while the mother, who resided in the home with the children, sought partition and sale.

The court dismissed the father's claim for exclusive possession, finding no basis for it.

The court granted the mother's request for partition and sale, noting the prima facie right to sale, the unsustainable carrying costs, and the lack of prejudice to the father.

The court also ordered that the mother receive 50% of the net proceeds of the sale immediately, with the remainder held in trust.

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.

The applicant brought a motion for the immediate partition and sale of a home jointly owned by the unmarried parties, and requested that the proceeds be held in trust pending trial.

The respondent opposed an immediate sale, seeking to delay closing until the end of the school year and requesting an immediate 50% disbursement of the proceeds.

The court found that the respondent failed to establish sufficient reason to refuse the sale, noting the applicant's unsustainable carrying costs.

The court ordered the property to be listed for sale with a closing date no sooner than January 31, 2023, and directed that $150,000 be disbursed to each party from the net proceeds, with the remainder paid into court.

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.

The moving party brought a motion for leave to appeal two previous orders.

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