Carolyn Shelley

The defendant, Len's Cove Marina Ltd., brought a motion to set aside a default judgment obtained by the plaintiff, Thomas McIlwain, concerning a defective boat.

The court dismissed the motion, finding the Marina's explanations for its significant delay in responding to the claim and the default judgment implausible.

The court also determined that the Marina did not present an arguable defence on the merits, particularly regarding its reliance on a manufacturer's warranty not directly applicable to the claim against the Marina for selling an unmerchantable product.

The court concluded that setting aside the judgment would not serve the overall integrity of the administration of justice, given the unreasonableness of the Marina's conduct.

The Applicant mother sought costs following a settled disclosure motion, while the Respondent father sought partial indemnity costs, claiming the motion was unnecessary.

The court found the father's ongoing lack of compliance and delays with financial disclosure to be unreasonable conduct.

The mother was deemed the successful party on the substantial issue of disclosure, despite the motion settling.

The court awarded the mother elevated fixed costs of $2,800, finding the father's conduct warranted such an award but did not reach the threshold of bad faith for full indemnity.

The father's request for costs was dismissed.

The respondent wife brought a summary judgment motion to dismiss the applicant husband's claim to set aside their marriage contract, arguing it was brought outside the two-year limitation period under the Limitations Act, 2002.

The court found that the claim to set aside the contract constituted a "claim" to remedy a loss and was subject to the two-year limitation period.

The husband had actual knowledge of the issues with the contract and the wife's reliance on it by October 17, 2012, making a court proceeding appropriate at that time.

The court also rejected the husband's argument regarding incapacity, finding no reliable evidence to rebut the presumption of capacity.

Consequently, the husband's claim to set aside the marriage contract was dismissed as statute-barred.

The respondent mother sought leave to appeal an interim spousal support order fixing support at $1,500 per month.

She argued the motion judge improperly treated the Spousal Support Advisory Guidelines ceiling of $350,000 as a hard cap despite the payor’s higher income.

The court held that applying the SSAG ceiling in an interim support context was within the motion judge’s discretion and did not demonstrate a conflict in legal principles with other decisions.

The applicant also failed to show a good reason to doubt the correctness of the order or that the proposed appeal raised issues of public importance.

Leave to appeal was therefore refused.

Following settlement of a family law dispute involving custody, access, property, and support, the parties sought a determination of costs.

The court considered Rule 24 of the Family Law Rules and the general principle that costs typically follow success but may not be appropriate where litigation resolves by consent without adjudication.

The judge found that success between the parties was divided and that it was difficult to determine a clear winner from the settlement terms.

Allegations of unreasonable conduct could not be assessed due to lack of sworn evidence and disputed facts.

In the absence of compelling reasons, the court declined to award costs to either party.

The applicant father brought a motion for interim joint custody of the parties' three-year-old child, as well as determinations on child and spousal support.

The respondent mother brought a cross-motion for interim sole custody, retroactive and ongoing child support for both the parties' child and her older child from a previous relationship, and retroactive and ongoing spousal support.

The court granted interim sole custody to the mother, finding that the parties' inability to communicate and the child's lack of overnight visits with the father militated against joint custody.

The court ordered the father to pay ongoing child support for the parties' child and spousal support, but dismissed the claims for retroactive support and child support for the older child, finding the father did not stand in loco parentis.