Carol J. Craig

The applicant, Lise Cassan, sought dependent's relief from the estate of Jean-Guy Villeneuve, claiming they lived in a conjugal relationship from 2006 until his death in 2022 and that he financially supported her.

The estate disputed the cohabitation and support, arguing she maintained a separate apartment and he had other relationships.

Applying the Molodowich factors, the court found that the applicant was a dependent spouse who had cohabited continuously with the deceased for over three years and received ongoing, systematic financial support.

The court granted interim support of $2,000 per month to the applicant, pending final disposition.

This costs endorsement followed a 10-day trial addressing parenting, child support, spousal support, imputation of income, and equalization of net family property.

The court found overall success was divided, with the applicant succeeding on equalization and imputation of income, and the respondent succeeding on parenting issues, spousal support, and post-separation adjustments.

Both parties were found to have behaved unreasonably—the applicant by not paying child support and the respondent by failing to provide complete financial disclosure and clarity on positions.

Consequently, the court ordered that each party bear their own costs.

The applicant brought an urgent motion seeking an order for their incapacitated 86-year-old mother to move into a memory care suite at a retirement residence, while one respondent advocated for a long-term care facility.

The court found no urgency and, to resolve the impasse between the siblings acting as powers of attorney, appointed the respondent who had primarily cared for the mother as the sole power of attorney for personal care regarding the mother's placement.

Additionally, the court ordered the sale of the mother's home, appointing the applicant as the sole power of attorney for property for the sale, subject to agreement on terms and disposal of personal property.

This endorsement addresses the costs of a prior motion where the Applicant was successful.

The Applicant sought costs on a full recovery basis from the date of her offer to settle, totaling $18,558.40.

The Respondent conceded costs but argued the quantum was excessive and that the Applicant's offer, which included a non-severable clause for a disputed loan repayment, was less favorable than the motion's outcome, thus precluding full recovery costs.

The court agreed with the Respondent, finding the offer less favorable due to the disputed loan.

The court also deemed the hours billed excessive for the issues.

Consequently, the Respondent was ordered to pay the Applicant $9,600, representing partial indemnity costs on a reduced quantum of hours.

The applicant brought a motion for an order regarding the sale of the parties' matrimonial home.

The respondent agreed to the sale but disputed the choice of real estate agent and the request for proceeds to be held in trust.

The court ordered the sale of the matrimonial home with the applicant's preferred real estate agent, Carol Traversy, citing her neutrality and the prior process for selecting agents for other properties.

The court also ordered that the net proceeds of the sale be held in trust pending a final order or agreement, due to the complex financial affairs of the parties and the respondent's lack of timely corporate financial disclosure, which raised concerns about potential equalization payments and child support arrears.

The applicant sought a declaration that $70,500 she advanced to the deceased was a loan payable by his estate, plus interest.

The estate disputed the claim, arguing insufficient corroboration under s. 13 of Ontario's Evidence Act due to lack of written documentation.

The court found sufficient corroboration through affidavit evidence from the deceased's brother and cousin, combined with financial records, concluding that the funds were indeed a loan.

The estate trustee was ordered to repay the loan with interest.

The appellant, Igor Alexander Winter, appealed a trial decision regarding the division of net proceeds from the sale of a jointly owned home following the breakup of his relationship with the respondent, Ronald James MacIntyre.

The trial judge had ordered an equal division, finding that Winter intended to gift his initial contributions (down payments) to MacIntyre.

The Court of Appeal found that the trial judge erred by failing to properly apply the presumption of resulting trust, which places the burden on the transferee (MacIntyre) to prove a gift was intended by the transferor (Winter).

The Court held that the trial judge's reasoning was flawed, particularly in extrapolating an intention to gift from the joint tenancy established for survivorship purposes, and that there was insufficient clear, convincing, and cogent evidence to rebut the presumption of a resulting trust.

The appeal was allowed, and Winter was ordered to be repaid his initial contributions from the sale proceeds before equal division of the balance.

The Estate Trustee sought directions from the court regarding the interpretation and distribution of two estates following the murder of the testators by their adopted son.

The central issue was the application of the criminal forfeiture rule (slayer rule) and whether the estates should be held in trust for the murderer's potential unborn children or accelerated to alternate beneficiaries.

The court applied the implied intention approach, ruling that the murderer was disentitled from any benefit.

It further determined that the gifts to the murderer's unborn issue should also fail due to public policy and the absence of living issue at the time of disentitlement, thereby accelerating the distribution of the estates to the next lineal beneficiaries (the testatrix's brothers), subject to specific annuity provisions.

The Court of Appeal heard motions concerning an appeal from an order requiring the passing of accounts for an estate.

The respondent (original applicant) sought to quash the appellants' appeal due to late service and to extend time for his cross-appeal to vary the lower court order to explicitly grant leave for his passing of accounts application.

The appellants (original respondents) sought to extend time for their notice of appeal.

The court granted the respondent's motion to extend time for his cross-appeal, finding it warranted by the justice of the case and that it would not cause prejudice.

The respondent's motion to quash the appeal was not pressed and was deemed not in the interests of justice to grant due to a technical, non-prejudicial delay.

Consequently, the appellants' motion for an extension of time was dismissed as unnecessary.

The applicant father sought a temporary order for primary residential care or an equally shared residential schedule for his nine-year-old son, alleging parental alienation by the respondent mother.

The mother opposed, asserting the child should continue to reside with her due to the child's wishes and fear of the father.

The court found the mother exerted significant influence over the child, supported his negative attitude towards the father, and minimized her own mental health issues.

The court dismissed the mother's allegations of abuse against the father and concluded that it was in the child's best interests to reside with the father temporarily, subject to specific terms for transition, counselling, and limited initial contact with the mother.

The applicant and respondent, former cohabitants of 22 years, sought resolution on spousal support and property division.

The applicant sought indefinite spousal support and equal division of the jointly owned Arnprior property.

The respondent denied spousal support entitlement, sought repayment of previously paid support, and reimbursement for initial contributions to both the Ottawa and Arnprior properties.

The court found the applicant entitled to indefinite non-compensatory spousal support, but at a lower monthly amount than previously ordered, resulting in a significant overpayment by the respondent.

The court also determined that the respondent's initial financial contributions to the properties were intended as gifts, thus ordering an equal division of the Arnprior property's net proceeds.

The overpaid spousal support was ordered to be deducted from the applicant's share of the property proceeds.

This case conference endorsement addressed the assignment of the proceeding to active case management under Rule 77 and issues concerning examinations for discovery and costs.

The defendants sought to conduct examinations for discovery by videoconference due to the COVID-19 pandemic and the plaintiff's age and health.

The plaintiff preferred written interrogatories or delayed in-person examinations.

Citing *Arconti v. Smith*, the court ordered that examinations for discovery proceed by videoconference, finding that the benefits of proceeding outweighed the plaintiff's concerns and that further delay was unreasonable.

The court also ordered submissions on costs thrown away from previously cancelled discoveries.

The plaintiff sought costs after successfully opposing the defendants' motion to set aside or discharge a certificate of pending litigation.

The court had previously found that the plaintiff failed to make full and frank disclosure on the original ex parte motion for the certificate, but that the certificate would have been granted anyway.

The defendants argued against costs due to the disclosure failure.

The court reserved costs of the motion to the trial judge, citing divided success on the motion (plaintiff won on substantive issue, defendants won on disclosure finding), the reasonableness of the defendants' motion, the early stage of the action, and the potential for litigation conduct to be a factor at trial.

The appellants appealed the dismissal of their application in contested estate proceedings challenging the validity of powers of attorney executed by their mother in 2013.

The appellants sought to invalidate the 2013 powers of attorney and reinstate 1995 powers of attorney.

The central issue was whether the testator had the requisite capacity to execute the 2013 powers of attorney.

The application judge found that the appellants failed to rebut the presumption of capacity with clear evidence on a balance of probabilities.

The Court of Appeal upheld the dismissal, finding no error in the application judge's assessment of the evidence or exercise of discretion.

The parties sought a determination on the applicable interest rate for child support and post-secondary education arrears previously found owing.

The respondent mother argued for a 6% post-judgment interest rate from the 2008 order date, accruing from default, based on s. 129 of the Courts of Justice Act.

The applicant father proposed various alternative average interest rates or the rate from the date of the endorsement quantifying arrears.

The court found that the father's obligations were known from the 2008 order, and the mother's motion was for enforcement.

The court rejected the father's proposals for lack of certainty and insufficient evidence to exercise discretion under s. 130 CJA.

The court applied s. 129(1) and (2) of the CJA, ruling that a 6% post-judgment interest rate from the 2008 order date applied, accruing from the date of each default.

No costs were awarded due to the parties' unreasonable litigation conduct on this issue.

The appellant father appealed an order of the Superior Court motion judge who struck his motion to change a trial judge's order for spousal and child support, and granted the Family Responsibility Office's motion for enforcement.

The trial judge had imputed annual income of $110,000 to the father and ordered him to pay ongoing spousal and child support for two daughters and an equalization payment.

The father had failed to comply with multiple court orders, owing over $60,000 in support arrears and over $50,000 in equalization payments.

The motion judge found the father had the means to pay but chose not to prioritize court-ordered payments.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the motion judge's discretionary orders.

The applicant previously brought a motion regarding arrears of child support and section 7 expenses.

The court issued an endorsement but left 2015 arrears undetermined pending income information.

The parties subsequently agreed on the respondent's 2015 income and arrears.

The court issued this addendum to update the previous endorsement with the agreed-upon figures for child support and post-secondary education expenses.

The respondent brought a motion seeking to be declared a "special party" under Rule 2 of the Family Law Rules and to have a litigation guardian appointed due to alleged mental incapacity preventing her participation in trial.

The applicant opposed, arguing the respondent had not met the onus of demonstrating incapacity and that such an appointment would deprive him of a fair trial.

The court found that while the medical evidence indicated significant stress and mental health issues, it did not conclusively establish that the respondent was unable to appreciate the reasonably foreseeable consequences of her decisions or instruct counsel.

The motion was dismissed, but adjourned to allow the respondent to submit further evidence regarding her capacity.

The respondent sought costs on a full recovery basis following a motion to enforce a prior order.

The court found the respondent to be the "more successful party" but not "almost entirely successful," and that settlement offers did not trigger full recovery.

The court also noted the respondent's "dogmatic" approach to medical/dental expenses disproportionately increased hearing time.

The applicant's conduct regarding post-secondary education obligations was deemed "obfuscation and deliberate." Costs were awarded to the respondent on a substantial indemnity basis, but reduced due to excessive fees and unreasonable disbursements (investigator).

Following a family law trial involving parenting, property, spousal support, and child support, both parties sought costs.

The court found that neither party achieved success on the property issues and both made unreasonable settlement offers.

The court declined to award costs for parenting, property, or spousal support due to divided success and the parties' failure to act in the children's best interests.

However, the applicant was awarded $7,500 in partial recovery costs for the issue of child support, as the respondent's position on child support was unsuccessful and he preferred his own financial interests over his support obligations.