Brian R. Kelly

The Applicant sought summary judgment to enforce an offer to settle made by the Respondent, which the Respondent's new counsel attempted to repudiate due to non-compliance with subrule 18(4) of the Family Law Rules (lack of the Respondent's personal signature).

The court found that a binding agreement had been formed based on ordinary contract law principles, as there was clear offer, acceptance, and consensus on all essential terms, and the parties had acted in furtherance of the agreement.

The Applicant's motion for summary judgment was granted, validating the settlement, and the original motions for partition and sale and occupation rent were dismissed.

Following a successful trial regarding resulting trust and unjust enrichment of a family residence, the applicant sought costs.

The applicant had delivered an offer to settle that triggered the cost consequences of Rule 18(14) of the Family Law Rules.

The court awarded the applicant the full requested amount of $36,556.92, finding the time spent reasonable and noting no reason to discount the fees.

The respondent father sought costs after successfully moving to rescind an ex parte order and obtaining non-supervised access to the children.

The applicant mother had obtained the initial order based on an affidavit that contained non-disclosure and mis-disclosure, which she later admitted during questioning.

Despite these admissions, the mother maintained an intransigent position, forcing the father to incur significant legal fees.

The court found the mother's conduct unreasonable and ordered her to pay $20,000 in all-inclusive costs to the father.

Following the dismissal of the plaintiff's action for well contamination, the court determined costs.

The plaintiff conceded liability for the defendant's partial indemnity costs but disputed liability for the third parties' costs.

Applying the principles from Guarantee Co. of North America, the court found it fair to order the plaintiff to pay the successful third parties' costs, as the main issue litigated was between the plaintiff and the third party who applied the biosolids.

The court fixed total costs at $70,000, apportioned among the defendant and two third parties, noting that the costs claimed were disproportionate to the modest nature of the case and criticizing the parties' failure to make reasonable settlement offers.

The applicant mother initially obtained an ex parte order granting her sole custody, exclusive possession of the matrimonial home, and a restraining order against the respondent father.

The court vacated the ex parte order after finding the applicant failed to disclose material facts, including her own recent initiation of intimacy and her admission that she sought supervised access merely because the respondent changed his work schedule.

On the interim motion, the court denied the applicant's request for a restraining order and supervised access, finding the status quo was shared parenting.

The court ordered an alternating 2-2-3 residential schedule.

The parties settled their family law dispute regarding spousal support and property on the eve of trial, leaving only the issue of costs to be determined.

The respondent sought costs based on an early offer to settle, while the applicant argued for no costs or a nominal amount due to the respondent's late disclosure of her job loss.

The court found that both parties had withheld important productions and acted unreasonably at times.

Applying the principle of proportionality, the court ordered the applicant to pay $5,000 in costs to the respondent.

The plaintiff claimed her water well was contaminated by municipal sewage waste (biosolids) applied to her neighbor's farmland, alleging nuisance and negligence.

The defendant brought a third-party claim against the farm lessee and the biosolids applicator.

The court dismissed the plaintiff's action, finding that she failed to prove, on a balance of probabilities, that the biosolids application caused the well contamination.

Crucially, no E. coli., the primary indicator of sewage contamination, was detected in any water samples, despite the presence of other bacteria commonly found in the natural environment.

The court also dismissed the third-party action.

The appellant appealed a sentence imposed for failing to comply with a Property Standards Order issued under the Building Code Act.

The appellant was convicted of non-compliance with an order requiring repairs to a residential property by August 15, 2012.

The sentencing judge imposed a $2,000 fine and six-month probation order.

The appellant challenged the sentence on grounds that evidence from her husband was improperly excluded and that certain factual findings were erroneous.

The appellate court upheld the sentence, finding it fit and proportionate within the acceptable range for the offence.

A creditor appealed a deputy registrar’s refusal to lift the automatic stay of proceedings under s. 69.4 of the Bankruptcy and Insolvency Act following the debtor’s bankruptcy.

The creditor argued the underlying judgment involved conduct amounting to fraudulent misrepresentation such that the debt would survive discharge under s. 178(1)(e), and that the registrar failed to consider sound reasons to lift the stay.

The court held that the registrar correctly applied the governing principles and was not required to make new findings of fraud absent such findings by the trial judge.

Because the underlying judgment contained no finding of fraud or false pretences, and lifting the stay would give the creditor an advantage inconsistent with the statutory scheme, there was no basis to interfere.

The appeal was dismissed.

Following dismissal of a motion to set aside a prior order, the successful party sought recovery of legal costs under Rule 24 of the Family Law Rules.

The court considered the Rule 24(11) factors and the costs consequences of an unaccepted Rule 18 offer to settle.

The moving party had pursued relief despite ongoing non‑compliance with financial disclosure obligations and ignored an early settlement offer.

The court found the litigation conduct unreasonable and ordered full recovery of the costs claimed.

Seventy‑five percent of the costs were characterized as relating to child support issues and were therefore enforceable by the Director of the Family Responsibility Office under the Family Law Responsibility and Support Arrears Enforcement Act, 1996.

A custody and child support dispute following a nine‑day trial concerning a child born in 2006 to unmarried parents.

The applicant sought sole custody and increased child support, while the respondent sought joint custody and equal week‑about parenting time.

The court addressed complex issues regarding the respondent’s income derived from numerous corporations and preferred the evidence of the respondent’s financial expert when determining income for child support purposes.

Child support was fixed at $3,750 per month based on an averaged income assessment and the child’s realistic needs, with no retroactive award given the respondent’s longstanding voluntary payments.

Joint custody was ordered with the child’s primary residence with the mother and structured parenting time for the father.

An employee brought a wrongful dismissal claim after her employment as a clinical trials coordinator was terminated without cause after more than eight years of service.

The court determined the effective working notice period was 6.5 weeks because the employer’s revised termination letter replaced the original notice, resetting the notice date.

Applying the Bardal factors, including the employee’s age (64), length of service, professional responsibilities, and limited availability of comparable employment, the court fixed reasonable notice at ten months.

The employer argued the employee failed to mitigate by not applying for hospital nursing positions, but the court held the employer failed to prove on a balance of probabilities that additional efforts would likely have resulted in higher income.

Damages were awarded after deducting mitigation income.

The applicant father brought a motion seeking joint custody and expanded access to the parties’ young child, while the respondent mother sought sole custody, supervised or suspended access, retroactive child support, interim spousal support, and transfer of the proceeding to another municipality.

The court found the parties’ affidavit evidence on allegations of abuse and parental involvement to be sharply conflicting and incapable of resolution on a motion record.

Maintaining the status quo, the court granted the mother interim sole custody pending the report of the Office of the Children's Lawyer.

The father was granted a gradual reintroduction to the child beginning with short-term supervised access at a supervised access centre before transitioning to unsupervised and then overnight parenting time.

The court declined to order retroactive child support, refused interim spousal support due to lack of demonstrated need, and dismissed the request to transfer the proceeding.

The applicant father brought a motion seeking regular unsupervised parenting time with the parties’ children following separation.

The respondent mother opposed overnight access and requested that the father’s contact occur only in her presence due to allegations of abusive and aggressive behaviour.

The court applied the best interests of the child test under s. 16 of the Divorce Act and considered the factors in s. 24 of the Children’s Law Reform Act.

Although the evidence included conflicting allegations and credibility concerns, child protection investigations had not identified safety risks.

The court concluded that supervision was not warranted and ordered a graduated schedule increasing the father’s parenting time leading to alternate weekends and mid‑week overnights.

The plaintiff brought an action seeking recovery of funds allegedly invested in two restaurant ventures with the defendant, asserting that the parties were equal partners and that the defendant retained proceeds and investments without accounting.

The defendant denied the existence of a partnership in the first venture and argued that the plaintiff was merely an investor in the second.

The court assessed conflicting evidence and found the defendant’s testimony unreliable, concluding that the plaintiff had invested substantial funds and that the defendant had been unjustly enriched.

The court held that the plaintiff was a partner or investor in both ventures and entitled to recover the invested amounts.

Judgment was granted for the plaintiff, subject to the Small Claims Court monetary jurisdictional limit.

Following a five‑day hearing on a motion to change child support, the court determined the appropriate costs award.

The responding party to the motion had unsuccessfully sought a retroactive reduction of child support after selling a dental practice and relocating abroad, and income had been imputed based on prior earnings.

The successful party sought substantial costs including partial and full indemnity rates.

Applying Rule 24 of the Family Law Rules and considering success, offers to settle, the parties’ conduct, and the complexity of the issues, the court found the successful party was entitled to costs but reduced the amount claimed.

The court fixed costs at a fair and reasonable figure rather than the full amount incurred.

The father brought a motion to change a 2000 divorce judgment, seeking to terminate child support for one child and adjust it for the other based on a reduction in his income after he sold his dental practice and moved to Honduras.

The court found the father was intentionally unemployed and under-employed, and that his health issues did not reasonably justify the sale of his practice.

The court imputed income to the father and determined the periods during which each child remained a 'child of the marriage' while pursuing post-secondary education.

The father was ordered to pay retroactive table support and his pro rata share of section 7 expenses for both children.