Carolyn J. Horkins

The appellant appealed a Master's order denying leave to amend its statement of claim to add its former solicitors as defendants in a breach of trust action.

The appellant alleged the solicitors negligently failed to properly register a construction lien.

The Divisional Court allowed the appeal, finding the Master erred in law by relying on compensable prejudice (delay and expense) to deny the amendment under Rules 26.01 and 5.04(2), and made a palpable and overriding error of fact by concluding the negligence claim was contingent on the outcome of the breach of trust action.

Leave to add the solicitors as defendants was granted.

The plaintiffs sought leave to appeal an interlocutory costs order in a securities misrepresentation class action.

The motion judge had ordered the defendant to pay 50% of the costs forthwith and 50% in the cause, while disallowing disbursements that had already been paid by settling defendants.

The Divisional Court dismissed the motion for leave to appeal, finding that the plaintiffs failed to satisfy the tests under Rule 62.02(4)(a) or (b).

The court emphasized the high degree of deference owed to discretionary costs orders, particularly those made by an experienced case management judge in a complex class proceeding.

The applicant builder sought judicial review of Tarion Warranty Corporation's decision finding it unwilling or unable to resolve warranty claims, which allowed Tarion to abridge vendor repair periods.

The Divisional Court dismissed the application without hearing the merits, finding that the issue was moot because the repair periods had long expired and Tarion had already undertaken the repairs.

The court also noted the applicant's unreasonable delay in bringing the application and the availability of an alternative remedy through an existing civil action.

The applicant sought leave to appeal an interim order requiring him to pay retroactive spousal support and maintain the respondent as an irrevocable beneficiary of his life insurance.

The court dismissed the motion for leave to appeal, finding that the applicant failed to establish a conflicting decision under Rule 62.02(4)(a) or a matter of general importance under Rule 62.02(4)(b).

Costs of $6,000 were awarded to the respondent.

The appellant lawyer appealed an order dismissing his motion to enforce a settlement agreement reached with the respondents.

The Divisional Court found the motions judge's one-sentence endorsement lacked adequate reasons, preventing appellate review.

Exercising its jurisdiction under the Courts of Justice Act, the Divisional Court heard the motion on its merits.

The court found that the parties' counsel had reached a binding settlement agreement via email, agreeing on the essential terms of a $15,000 payment and a full and final release.

The respondents' subsequent refusal to sign the documents was an improper attempt to resile from the agreement.

The appeal was allowed and the settlement enforced.

The appellants appealed an order removing their lawyers of record, which was made during a motion to consolidate and extend time.

The Divisional Court found the motions judge clearly erred by proceeding without proper notice, without supporting evidence, without allowing responding evidence, and on a motion brought by a respondent who lacked standing.

The appeal was allowed, the order was set aside, and costs were awarded against the respondent personally.

The Registrar appealed a Licence Appeal Tribunal decision ordering the Registrar not to carry out a proposal to refuse the respondent's registration as a motor vehicle salesperson.

The respondent had a criminal conviction for arson and provided inaccurate details about it during the application process.

The Divisional Court allowed the appeal, finding the Tribunal erred in law by focusing on whether the respondent deliberately intended to mislead rather than whether he knowingly made false statements.

The Court set aside the Tribunal's decision and directed the Registrar to refuse the registration.

The appellant brought a motion to set aside an order quashing his appeal to the Divisional Court for want of jurisdiction.

The underlying action claimed $15 million in damages, which exceeds the $50,000 monetary limit for appeals to the Divisional Court under the Courts of Justice Act.

The appellant argued the appeal should have been transferred to the Court of Appeal.

The Divisional Court dismissed the motion, noting the appellant had not sought a transfer in his materials and had proceeded in the Divisional Court despite being alerted to the jurisdictional issue.

In a high-conflict family law dispute, the applicant father brought a motion alleging the respondent mother was in contempt of prior court orders by refusing access, while the mother brought a motion seeking to vary the order to restrict or supervise the father’s parenting time.

The court was asked to determine interim Christmas holiday parenting time.

Medical evidence concerning the child’s concussion and ongoing recovery created disagreement between the parties regarding physical activity restrictions and compliance with medical guidelines incorporated into a prior order.

The court declined to resolve disputed credibility issues on the paper record but found the father had breached a prior order by allowing the child to engage in physical activity before medical clearance.

Nevertheless, the court held that the child’s best interests required a typical shared holiday schedule and ordered that each parent have one week of Christmas parenting time, subject to travel restrictions and further directions regarding medical consultation and psychological support.

The applicant brought a motion to enforce a final family law order for child support, section 7 expenses, and costs by garnishing the respondent's Retirement Life Income Fund (RLIF).

The court held that under section 66(4) of the Pension Benefits Act, the amount subject to execution for support orders is limited to 50% of the money payable to the respondent in a given year.

The court ordered the respondent to elect the maximum annual withdrawal from his RLIF and direct 50% of the net amount to the applicant until the arrears and $30,000 in fixed costs are satisfied.

The applicant's request for an advance order on future section 7 expenses was dismissed.

The applicant sought occupation rent after leaving the jointly owned matrimonial home due to severe conflict and alleged domestic violence, while the respondent remained in the property with a new partner and changed the locks.

The court considered the common law principles governing occupation rent where no order for exclusive possession exists, including the timing of the claim, duration of occupancy, inability of the non-resident spouse to realize equity, and equitable set-offs.

The evidence established that the applicant’s departure was effectively compelled and that the respondent had exclusive use of the property while delaying sale or buyout.

The court found it equitable to award occupation rent based on half of the fair market rental value.

Credits were to be applied for the respondent’s payments toward property taxes and the joint line of credit.

Following a successful motion to change a final family law order, the court determined the appropriate costs award.

The moving party had succeeded in terminating spousal support and varying child support due to reduced income, though a related contempt motion failed.

Applying Rules 24 and 18 of the Family Law Rules and the principles in Boucher v. Public Accountants Council for the Province of Ontario, the court assessed success, offers to settle, and the reasonableness of the parties’ conduct.

The responding party’s failure to provide reliable financial disclosure and repeated lack of preparation for conferences constituted unreasonable conduct that increased litigation costs.

The court rejected both the full indemnity claim and the responding party’s request for no costs, fixing a fair and reasonable total costs award.

A child protection appeal concerning whether a trial was required on the issue of parental access after the children were made Crown wards.

The motion judge had granted summary judgment making the children Crown wards but found a genuine issue requiring a trial regarding access.

The appellate court held the motion judge erred in law by importing post-adoption openness considerations into the statutory test under s. 59(2.1) of the Child and Family Services Act and by failing to follow the statutory pathway requiring proof that the relationship was beneficial and meaningful to the children.

The evidence did not establish a genuine issue requiring a trial on that issue.

The court substituted an order providing that there be no access.

Following a nine‑day family law trial concerning child support income, arrears, section 7 expenses, spousal support, and distribution of trust funds, both parties sought substantial costs awards against the other.

The court considered the Family Law Rules, particularly Rule 24, and the principles governing costs including proportionality, success at trial, reasonableness of conduct, and the parties’ financial circumstances.

The court found that success at trial was divided, with each party prevailing on different issues.

Certain claimed fees and disbursements were disallowed because costs for earlier steps had not been reserved to the trial judge.

After weighing the relevant factors, the court concluded that fairness required each party to bear their own costs.

The mother appealed an order granting summary judgment in a child protection proceeding that made the child a Crown ward without access.

The motion judge had concluded there was no genuine issue requiring a trial under Rule 16 of the Family Law Rules, given the child’s prolonged time in care, consistent refusal to return to the mother, and the statutory limits on continued Society wardship under the Child and Family Services Act.

On appeal, the mother argued the wrong legal test was applied and that the judge relied excessively on hearsay statements attributed to the child.

The court held that the correct summary judgment test was applied and that even if the expanded fact‑finding powers under Rule 20 of the Rules of Civil Procedure had been considered, the outcome would have been the same.

The evidence established no triable issue, and the motion judge properly relied on professional reports reflecting the child’s consistent views and therapeutic assessments.

This addendum to prior reasons for judgment addressed an alleged error in the treatment of money held in trust following a family trial.

The court accepted that a prior consent order established that the trust funds belonged to the applicant, and found its earlier reasons mistakenly assumed each party was entitled to equal shares.

After setting off amounts owed between the parties, the court held the applicant was entitled to all trust funds.

The court struck specified paragraphs from the earlier reasons and corrected a typographical error relating to section 7 expenses.

The applicant mother brought a motion to change a final consent order granting sole custody to the respondent father.

She argued that the termination of family counselling, the child's absence from school, and the respondent's changes in residence constituted material changes in circumstances.

The court applied the test from Gordon v. Goertz and found that none of these events were unforeseen or materially affected the children's needs in a fundamental way.

The motion to change was dismissed, and costs were fixed at $2,000 payable by the applicant.

Following a family trial, the court determined the payor spouse's income for child support purposes after rejecting the recipient's request to impute higher income based on alleged under-employment, cash income, and lifestyle evidence.

Applying the governing imputation principles and the Federal Child Support Guidelines, the court fixed adjusted incomes, found that the payor had overpaid table child support, and ordered reimbursement through funds held in trust.

The court also assessed disputed s. 7 claims, allowing certain daycare, medical, dental, travel, and extracurricular expenses but rejecting school uniforms and past cell phone charges, while directing future sharing of the eldest child's cell phone expense.

Although the evidentiary basis for substantial spousal support was weak at the income levels accepted by the court, a modest amount for two years was ordered, and the remaining trust funds were distributed by set-off.

The applicant child was successful on a motion for interim relief against the respondent father, obtaining a declaration of parentage, child support, and interim disbursements.

The parties could not agree on costs.

The applicant sought full recovery costs based on an offer to settle and the respondent's unreasonable behaviour.

The court rejected the respondent's argument that the issues were novel or of public interest.

Finding the respondent's behaviour unreasonable and that the applicant beat her offer to settle, the court awarded costs of $32,523.72.

On a family law motion arising from a long-term marriage, the applicant sought interim disbursements, broad disclosure relief, security for equalization and spousal support, passport surrender, insurance protection, and costs in response to persistent financial non-disclosure by a self-employed spouse.

The court refused a further adjournment, accepted the applicant's evidence as unchallenged, and held that interim disbursements were necessary under rule 24(12) to level the playing field and permit valuation of the respondent's business and income.

The court further held that it had jurisdiction under s. 34 of the Family Law Act and rule 1(8) of the Family Law Rules to order security, including surrender of passports, given the respondent's repeated non-compliance, arrears, and evidence supporting a risk that he might leave the jurisdiction and frustrate support and equalization claims.

The motion was substantially successful, resulting in a $25,000 interim disbursement, a $1,000,000 bond, passport deposit, insurance and disclosure orders, and substantial indemnity costs.