Bryan Delaney

The court considered an application by Misty Wilson to vary the spousal support terms of a 2018 separation agreement, seeking a retroactive and prospective increase and security for support.

The court found a material change in circumstances due to the cessation of child support obligations and an increase in Dan Wilson’s income, but declined to order retroactive support before January 1, 2023, or require life insurance security.

Spousal support was increased to $1,000 per month effective January 1, 2023.

This decision resolves a complex family law dispute involving property division, beneficial ownership, child and spousal support, and related trust and equalization claims.

The court found that the Quinn Property was always beneficially owned by the spouses, despite title transfers, and that Omar was the true owner of Cedar Woodwork Inc. The court ordered an unequal division of net family property due to Omar’s reckless depletion of assets and lack of disclosure, and set child and spousal support based on imputed income.

The judgment also addresses the enforceability of an alleged vendor take-back mortgage and the parties’ credibility.

This case involved cross-applications concerning an estate.

The deceased's will granted her son, Mario, an option to purchase her house within six months of her death at fair market value.

Mario failed to exercise this option within the deadline.

His sister, Susan, sought partition and sale of the property, an accounting of Mario's management of the deceased's property before and after her death, and the appointment of an estate trustee.

Mario cross-applied, seeking a declaration that he could still exercise the option.

The court found Mario's option had lapsed due to his failure to take meaningful steps to exercise it.

It ordered Mario to provide accountings for his management of the deceased's property and the Estate's assets (including funds in joint bank accounts subject to a resulting trust).

The court also ordered Mario to pay occupation rent for the property from November 2020, appointed an Estate Trustee During Litigation, and directed the sale of the property, requiring Mario to vacate.

The applicant father brought a motion seeking interim parenting orders, and the respondent mother filed a cross-motion for interim relief.

The parties reached partial agreement, narrowing the issues to the expansion of the father's parenting time, including wrap-around weekends and mid-week overnights, and holiday schedules.

The court, applying the best interests of the child principle under the Children’s Law Reform Act, ordered an incremental increase in the father's parenting time, including an additional weekend overnight commencing in September and an every-other-week Wednesday overnight commencing in January 2024.

The court also made an interim order for Easter holiday parenting time and deferred decisions on other long weekends and summer holidays.

This endorsement addresses the issue of costs following a motion heard on June 24, 2021.

The Respondent, who was the more successful party on the substantive issues of the original motion, sought costs of $19,000.

The Applicant sought an order for each party to bear their own costs.

The court applied the principles of costs under the Family Law Rules, including indemnification, encouraging settlement, and discouraging inappropriate behaviour, as well as factors under Rule 24(12) and the consequences of offers to settle under Rule 18(14).

The court found the Respondent to be the successful party on the substantive issues and noted that the Respondent's offer to settle was more favourable than the outcome for the Applicant.

The Applicant was ordered to pay costs to the Respondent.

The plaintiff brought a motion for an extension of time to set the action down for trial and to find the defendants in contempt.

The contempt motion was dismissed, and the parties could not agree on costs.

The defendants sought costs on a substantial indemnity basis, arguing that the contempt motion was ill-advised.

The court rejected the request for substantial indemnity costs, finding the plaintiff's conduct was not reprehensible.

The court fixed the defendants' costs at $9,000 on a partial indemnity basis, payable by the plaintiff.

The plaintiff brought a motion to extend the time to set the action down for trial and to find the defendants in civil contempt for allegedly failing to comply with a prior order for documentary production.

The court granted the extension of time on consent.

The court dismissed the contempt motion, finding no evidence that the defendants acted in defiance of the order, as they had produced documents and provided reasons for not producing others.

The court emphasized that civil contempt is a remedy of last resort and other adequate remedies were available to the plaintiff.

The Applicant father brought an urgent motion for a temporary shared parenting schedule for the child, Olive Grace Murray.

The Respondent mother opposed, seeking limited supervised access and communication through an app, and also requested child support (which the court declined to consider).

The court reviewed the parties' history, including a prior shared parenting arrangement that the mother unilaterally stopped, and the mother's concerns about the father's conduct and mental health.

Applying the "best interests of the child" principle and the desirability of maximizing contact, the court found no compelling reasons to alter the status quo of shared parenting.

The motion was granted, restoring the shared parenting schedule with third-party exchanges and communication via a designated app.

The applicant brought a motion for contempt of court after the respondent refused to return the children following a summer access visit.

The contempt motion was resolved substantially on consent after the respondent retained counsel.

The court treated the motion as one to enforce a court order.

The applicant sought full indemnity costs of $2,883.12.

The court found the respondent's conduct necessitated the motion but declined to award substantial indemnity costs due to the consent resolution.

Costs were fixed at $1,700 payable by the respondent.

The respondent father brought a motion seeking to resume access to his three children and obtain make-up access for missed visits following a Children's Aid Society (CAS) and police investigation that concluded without verified allegations.

The applicant mother had partially reinstated access but with modifications.

The court ordered the resumption of access largely consistent with a prior mediated agreement, with specific amendments regarding child exchange locations and parental conduct.

The father's request for extensive make-up access was partially granted, with the court ordering eight additional Saturday visits over a period, balancing the children's best interests and avoiding punitive measures against the mother.

The court also ordered an update from the Office of the Children's Lawyer and required the father to provide information on COVID-19 precautions.

The moving party sought permission to bring a motion to change his spousal support obligations, having recently paid over $300,000 to purge a warrant of committal for support arrears.

The responding party opposed the request on the basis that the moving party still owed significant arrears and unpaid costs, and had not posted security for costs.

Relying on recent appellate authority that security for costs should not act as a roadblock to genuine claims for review of support, the court granted the moving party permission to proceed with his motion to change, subject to strict financial disclosure requirements.

The defendant brought a motion seeking an order for the plaintiff to return jewellery upon payment of a Quebec default judgment, which had been recognized and ordered enforceable in Ontario.

The court dismissed the motion, finding it constituted a collateral attack on prior final judgments and an abuse of process, as the defendant had failed to appeal or vary any of the previous orders.

The parties were unable to reach an agreement on costs following an application for leave to appeal an interim order.

The applicant in the main action was the successful respondent on the leave application.

Applying the presumption that a successful party is entitled to costs under Rule 24(1) of the Family Law Rules, and considering the factors under Rule 24(11), the court awarded partial indemnity costs of $2,700 to the successful party.

The appellant sought leave to appeal an interlocutory order that set aside a default divorce judgment but upheld terms regarding spousal support and the sale of a property.

The court dismissed the motion for leave to appeal, finding that the appellant failed to demonstrate a conflicting decision based on differing legal principles, and failed to show good reason to doubt the correctness of the motion judge's exercise of discretion.

The court also noted the issues were not of general public importance.

The respondent brought a motion to set aside a default divorce order obtained after an uncontested trial when he failed to participate in the proceedings.

The court considered the traditional three-part test for setting aside a default judgment—promptness, explanation for the default, and an arguable defence—but emphasized that the factors are not rigid preconditions and the ultimate inquiry is whether the interests of justice favour setting aside the order.

The respondent’s failure to participate was explained by severe disabilities and ongoing medical complications, and he raised arguable issues regarding property equalization, support, and the treatment of funds from a personal injury settlement.

The court also considered the applicant’s limited enforcement steps and subsequent settlement discussions when assessing delay and prejudice.

The default divorce order was set aside except for the prior costs award, and certain interim orders remained in effect pending further proceedings.

A farmer sued his insurance broker alleging negligence for failing to obtain insurance coverage for collapse of a tarp barn due to snow load.

Both parties brought competing motions for summary judgment.

The court held that the broker breached its duty of care by failing to adequately advise the client about coverage and foreseeable risks.

However, the plaintiff failed to prove causation because the evidence did not establish that the collapse was more likely than not caused by snow load rather than other possible causes such as wind, design flaws, or construction defects.

As a result, the plaintiff could not establish that the broker’s breach caused the loss.

The applicant brought a fourth motion seeking to have the respondent found in contempt for allegedly breaching a prior order restricting him from receiving income or benefits from his corporation while in default of spousal support obligations.

The respondent was significantly in arrears and had previously been found in contempt related to enforcement of support and security obligations.

The applicant argued that the respondent violated the order by receiving corporate-paid benefits including a vehicle, cell phone, and insurance coverage.

The court held that these items were legitimate business expenses necessary for the operation of the respondent’s real estate business and did not constitute prohibited benefits within the meaning of the earlier order.

The motion for contempt was dismissed and costs were reserved to the judge hearing the ongoing motion to change support.

The respondent to a prior support order brought a motion to vary a consent order governing child and spousal support, arrears, life insurance obligations, and costs.

The consent order had established a mechanism requiring an independent business valuator to annually determine the payor’s guideline income to avoid further litigation.

The court held that varying the order would require determining income in a manner inconsistent with the parties’ agreed mechanism and found no justification to depart from it.

Arguments relying on the principles in Boston v. Boston regarding equalized assets were rejected because income from a business does not deplete the capital asset.

The motion to vary was dismissed, while the opposing party’s cross‑motion succeeded, fixing arrears based on expert reports and ordering security for support due to the payor’s persistent non‑compliance.