Brigitte Chantal Barsalou

This costs decision follows a complex family law trial between Barbara Lang-Newlands and Ian Newlands.

The court reviews the parties’ conduct, settlement offers, and relative success on issues, ultimately awarding the applicant, Barbara, $2,800,000 in costs.

The decision details the application of the Family Law Rules regarding offers to settle, the reasonableness of the parties’ behaviour, and the principles guiding costs awards in family law litigation.

The parties separated after a 32-year marriage.

The applicant's father had established a highly successful business.

Before the marriage, the father settled a trust holding shares in the business for the applicant.

During the marriage, the applicant received the shares and later participated in an estate freeze, transferring the shares to a holding company in exchange for preferred shares, while a new trust (the NFT) acquired the common shares.

The applicant and her children were discretionary beneficiaries of the NFT.

The main issue was whether the applicant's interest in the NFT was property subject to equalization, and if so, whether it was excluded as a gift.

The court found the interest was property, but bound by the Court of Appeal's decision in Shinder v. Shinder, held it was an excluded gift.

The court also determined the valuation of various assets, dismissed the respondent's unjust enrichment claim to a cottage, and ordered the applicant to pay an equalization payment of $1.18M and needs-based spousal support of $25,649 per month.

The applicant brought a motion seeking exclusive possession of the matrimonial home, primary residence and sole decision-making for the children, and supervised parenting time for the respondent.

The court noted highly conflicting and untested affidavit evidence regarding serious allegations of abuse and parenting.

The court ordered a Section 30 assessment to be conducted by a psychologist or psychiatrist.

Pending the assessment, the court ordered temporary-temporary nesting arrangements for the matrimonial home, a specific shared parenting schedule with the children's nanny present during the respondent's time, and general communication rules.

The court declined to make findings on most allegations due to conflicting evidence but noted concerns regarding the respondent's anger management and inappropriate communication about the youngest child, which influenced the temporary parenting plan.

This endorsement addresses the admissibility of extensive hearsay evidence, particularly statements attributed to children, presented via affidavit in a family law trial.

The court reiterated that while evidentiary rules may be flexible for children's best interests, the hearsay rule is not relaxed for trial affidavits.

It emphasized the "necessity and reliability" test for admitting children's hearsay, finding that the impugned statements lacked sufficient procedural and substantive reliability, especially given the children's vulnerabilities and the absence of independent corroboration.

The court largely disallowed the admission of the contested hearsay evidence.

The appellant brought a motion for leave to appeal an order dated June 7, 2022.

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

The applicant father sought full recovery of costs related to a contempt motion where the respondent mother was found in contempt of prior court orders regarding parenting time and information sharing.

The mother's non-compliance led to the father having no contact with the child and unilateral decisions by the mother.

The court found the mother acted in bad faith due to her intentional breaches and efforts to alienate the child.

Despite the mother's financial circumstances, the court ordered her to pay $55,000 in costs to the father, emphasizing the seriousness of contempt and the need to sanction inappropriate litigation behaviour.

The mother was found in contempt of prior parenting orders, leading to the father being deprived of access.

The court imposed a $5,000 penalty on the mother and continued a temporary order placing the child in the father's primary care with specific parenting time for the mother.

The court also addressed an urgent motion to change parenting arrangements, finding jurisdiction to make temporary orders in the child's best interests, and requested a section 112 investigation by the Office of the Children's Lawyer.

The child's stated wishes were given little weight due to concerns about independence and potential influence.

The father brought a contempt motion against the mother for breaching prior court orders regarding parenting time and information sharing concerning their child.

The court found that the mother had intentionally failed to facilitate the child's relationship with the father, withheld medical and school information, and interfered with the child's communication with the father.

The judge determined that the mother's actions constituted willful disobedience and that she had not taken reasonable steps to comply with the orders.

As a remedy, the court ordered a change in the child's primary residence to the father, with the mother's contact suspended for 60 days, and granted the father temporary sole decision-making authority.

The decision emphasized the importance of upholding court orders and the negative impact of parental alienation on children.

The moving party sought leave to appeal a lower court decision dated May 21, 2021.

The Divisional Court dismissed the motion for leave to appeal in writing and ordered the moving party to pay costs of $3,600 to the responding party.

The parties separated in 2004 and entered into a separation agreement in 2005 requiring the respondent to pay spousal support.

The agreement included a material change clause and a retirement adjustment clause.

Following the respondent's retirement in 2016, he brought a motion to reduce spousal support.

The trial judge reduced the support payable, declining to impute income based on a 2009 early pension payout or to immediately impute maximum LIRA withdrawals.

The appellant appealed, arguing the trial judge failed to address her economic hardship and misapprehended the evidence.

The Court of Appeal dismissed the appeal, finding no error in principle or significant misapprehension of the evidence in the trial judge's assessment of the parties' circumstances.

The applicant sought a divorce and judgment in accordance with a marriage contract signed in 1991.

The respondent husband sought to set aside the marriage contract, claiming inadequate financial disclosure, lack of understanding, duress, and unconscionability, or alternatively, rectification of a unilateral mistake regarding his entitlement to the matrimonial home's increased value.

The court dismissed the respondent's claims, finding he was aware of the applicant's assets, received independent legal advice, and faced no duress or exploitation.

The marriage contract was upheld, and the respondent was ordered to pay $85,000 in costs.

The applicant father and respondent mother disagreed on whether their six-year-old child should return to in-person learning or continue online learning during the COVID-19 pandemic.

The court considered the risks of exposure to COVID-19, the lack of underlying health conditions for the child, the child's social development needs, and the safety measures implemented by the school.

The court concluded that the benefits of in-person learning outweighed the risks and ordered the child to return to school in person.

No costs were awarded due to the novelty of the issue.