C. A. Tucker

Following settlement of most family law issues, the remaining trial concerned equalization consequences arising from disputed retrospective valuations of development lands owned through the respondent's corporation at the date of marriage and date of separation.

The court heard competing appraisal evidence from three experts and made its own findings on each property, preferring different aspects of the expert analyses depending on comparables, methodology, and market context.

The court also rejected the contention that part of the matrimonial home should be excluded for business use, fixed values for the parties' wedding rings, and declined requests for indexing or security for support.

The unresolved equalization amount was left to be determined by the parties using the court's valuation findings.

In a family law trial following separation, the court resolved parenting, matrimonial property, child support income, carrying costs, and occupation rent issues.

The court declined to increase the respondent’s weekday access, finding the requested change was not shown to be in the child’s best interests.

Interpreting a marriage contract dealing with unequal contributions to a replacement matrimonial home, the court held the parties should share the reduced sale proceeds proportionately rather than equally, awarding 38% to the applicant and 62% to the respondent.

The court also imputed child support income to the respondent at amounts exceeding some of his claimed earnings, limited the applicant’s liability for carrying costs to a specific tax-related amount, and denied occupation rent.

This was a costs endorsement following a grandparent access motion.

The applicants had obtained limited access, less than requested, and sought partial indemnity costs based on alleged litigation conduct and partial success.

The respondent argued there should be no order as to costs because success was divided and cooperation had been shown.

The court held that costs should be in the cause so that the judge hearing the full evidentiary record could determine who should ultimately bear the costs of the motion.

On a family law motion concerning retroactive child support, ongoing support, and s.7 post-secondary expenses for two children, the court held that one child ceased to be a child of the marriage when he finished school and began full-time employment, barring retroactive and s.7 claims for him.

For the second child, the court found he resided with the father for a period, terminated support for that interval, continued support until full-time employment commenced, and limited retroactive support to the three years preceding the mother's motion.

The court rejected a claim of blameworthy conduct sufficient to justify reaching back to 2000.

It further held that one-third of the support payor's RSP withdrawals should be included in income for child support purposes and ordered a proportionate contribution to post-secondary expenses.

A statutory third party insurer sought leave to bring a motion after the action had been set down for trial in order to compel the plaintiff to attend a psychiatric defence medical examination.

The insurer argued that it had only recently become aware of the psychiatric component of the claim and that, as a statutory third party with separate interests from the defendant insurer, it was entitled to its own medical examination.

The court held that there had been no unexpected or substantial change in circumstances justifying leave after the matter was set down for trial.

The court also found that the insurer’s interests were effectively the same as the defendant insurer’s and that a psychiatric defence examination had already been obtained.

The motion was therefore dismissed.

The defendant insurer sought leave to appeal an interlocutory order dismissing its Rule 21 motion to strike the plaintiff’s statement of claim for failure to disclose a reasonable cause of action.

The underlying action arose from allegations that the insurer improperly required the plaintiff to pursue Canada Pension disability benefits and forced him into a collateral agreement, resulting in legal costs and damages.

The court held that the defendant failed to demonstrate conflicting authority or provide good reason to doubt the correctness of the motion judge’s decision.

Accepting the pleadings as true, the claim raised issues relating to contractual obligations, potential unjust enrichment, and alleged bad faith.

Leave to appeal was therefore refused.

Following a two‑day family trial addressing equalization, child support, retroactive child support, and s.7 expenses, the court reserved the issue of costs.

The applicant had been substantially successful at trial and sought recovery of her legal costs.

The respondent had failed to produce financial disclosure despite court orders, which contributed to the need for trial.

Considering the success of the applicant and the relatively straightforward issues, the court exercised its discretion to award trial costs to the applicant.

Costs were fixed in the amount of $9,000 inclusive of disbursements and HST.

Following marital separation, the applicant sought determination of retroactive and ongoing child and spousal support, alleging that the respondent understated his income and diverted earnings through a corporation he solely controlled.

The court found the corporation had been created to disguise the respondent’s true income and pierced the corporate veil, attributing the corporation’s contract income directly to the respondent for support purposes.

The respondent’s income was fixed significantly higher than the salary he drew from the corporation, and arrears of support exceeding $160,000 were calculated based on the corrected income figures.

The court also confirmed that an adult child with severe autism remained a “child of the marriage” under the Divorce Act and was entitled to ongoing support.

The corporation was added as a party, ordered jointly liable for support obligations, and required to provide ongoing financial disclosure.

A family law trial addressing child support, retroactive support, section 7 expenses, and equalization following marital separation.

The respondent failed to provide financial disclosure, including tax returns or financial statements, requiring the court to rely largely on testimonial evidence.

The court imputed income to the respondent based on historical earnings and capacity to earn through employment and landscaping business activities.

Orders were made for retroactive and ongoing child support, contribution toward section 7 expenses, and an equalization payment, largely satisfied from the respondent’s share of matrimonial home proceeds.

The responding parent brought a motion to vary an existing parenting order to obtain equal parenting time with the parties’ children.

The other parent opposed the motion on the basis that no material change in circumstances had occurred and that the proposed arrangement was not in the children’s best interests.

The court held that the evidence largely repeated the material filed on the original motion and did not establish a material change affecting the children.

The moving parent had also failed to exercise a number of scheduled access visits under the existing order.

The court concluded that the motion amounted to a thinly disguised appeal of the prior order and dismissed the motion to change, leaving the issue of equal parenting time to be determined at the upcoming trial.

The appellants appealed a Small Claims Court decision dismissing an action for damages arising from a failed real estate transaction.

The seller sought damages beyond forfeiture of a $500 deposit after the purchaser backed out of an agreement of purchase and sale due to loss of employment.

The appellate court held that the deputy judge correctly interpreted Schedule “C” of the agreement as limiting the seller’s recovery to forfeiture of the deposit.

The court also found no error in declining to consider affidavit opinion evidence or settlement conference material.

The appeal was dismissed.

Following a successful motion to obtain financial disclosure and enforce a prior court order in a family law matter, the applicant sought costs of $16,147.

The respondent disputed the quantum, arguing unnecessary steps, duplication of services, and efforts to comply with the prior order.

The court noted the motion was largely successful but observed issues with civility between the parties and duplication in the applicant’s billing.

Considering the circumstances, including the relative simplicity of the issues and the discretionary nature of costs, the court reduced the requested amount.

Costs were fixed at $10,000 plus disbursements and HST.

The applicant corporation sought an injunction to prevent approval of contracts related to a proposed light rail transit project in the Region of Waterloo.

The court found the applicant lacked standing, noting it was recently incorporated, had unknown ownership, and possessed no apparent assets or ratepayer status.

The court further held the principal failed to disclose a personal interest arising from expropriation of his property connected to the project, undermining the equitable basis for relief.

The applicant failed to provide an undertaking for damages, did not establish a strong prima facie case under the Planning Act, and failed to demonstrate irreparable harm or a balance of convenience favouring relief.

The application for an injunction was dismissed with costs.

The plaintiff sought to amend the statement of claim to either substitute or add the automobile insurer of the vehicle in which she was travelling when injured in a motor vehicle accident allegedly caused by an unidentified driver.

Although the claim initially named only the plaintiff’s own insurer and her son as defendants, the plaintiff had notified the proposed insurer at an early stage of a potential unidentified motorist claim and provided ongoing information regarding the claim.

The court held that the plaintiff always intended to name that insurer and that it had been on notice of the claim and therefore suffered no prejudice despite the expiry of the limitation period.

Applying Rule 5.04(2) of the Rules of Civil Procedure and s. 21(2) of the Limitations Act, 2002, the court concluded the circumstances justified amendment.

The proposed insurer was added as a defendant rather than substituted because both insurers could potentially provide coverage.

Following the consent dismissal of all claims in a family law proceeding between a surviving spouse and the estate of the deceased spouse, the court determined the respondent estate’s entitlement to costs.

The surviving spouse had commenced litigation seeking spousal support, equalization, and other relief relating to matrimonial property after discovering that the deceased spouse’s estate left him no inheritance.

Although the court acknowledged circumstances that contributed to the dispute, including actions by the estate trustee and uncertainty surrounding asset values, the claims ultimately failed and the estate was the successful party.

Applying Rule 24 of the Family Law Rules, the court found the respondent entitled to partial indemnity costs but reduced the amount sought as disproportionate to the value and complexity of the issues.

Costs of $50,000 plus HST and disbursements, together with $2,500 plus HST for the costs motion, were awarded.

The plaintiff lender brought a motion for summary judgment against the defendants on personal guarantees executed in connection with commercial credit facilities exceeding $3.9 million.

The defendants argued various defences including non est factum, failure to realize on security before enforcing the guarantees, unconscionability, innocent misrepresentation, and lack of independent legal advice.

The court exercised its powers under Rule 20 to weigh evidence and assess credibility and found the primary defence of non est factum unsupported, concluding the defendant guarantor was willfully blind in signing documents without inquiry.

The court also rejected arguments of agency, misrepresentation, unconscionability, and undue influence.

The guarantees were found valid and enforceable and summary judgment was granted to the lender.

The parties separated in 2010 after a seven-year relationship.

The mother sought sole custody, child support, and orders regarding jointly owned property, while the father sought joint custody.

The court granted sole custody to the mother, finding she had been the primary parent and the parties had poor communication.

The father was granted specified access and ordered to pay child support of $373 per month, with arrears to be paid from his share of the proceeds from the sale of their jointly owned home.

The court also ordered the father to sign passport applications, required the home to be sold, and ordered the father to reimburse the mother for half the cost of a roof repair.

The mother's requests for a restraining order and mobility rights were dismissed.

Following a trial concerning the validity of a conveyance that severed a joint tenancy in residential property, the successful defendants sought costs.

The plaintiffs had attempted to set aside the conveyance on the basis of incapacity and undue influence and also sought rent and occupation rent, while the defendants advanced a counterclaim asserting a trust interest.

The court dismissed the plaintiffs’ claims and the defendants’ counterclaim, leaving the conveyance intact and determining ownership through the deceased’s will.

In the costs endorsement, the court held that the defendants were the successful parties and entitled to costs on a partial indemnity basis.

The court declined to apply the defendants’ Rule 49 offer to settle because it did not correspond precisely with the judgment.

A family dispute arose regarding ownership of a Toronto home held in joint tenancy by two parents and their son.

Shortly before his death, the father executed a transfer severing the joint tenancy so that his interest would pass under his will to his daughter.

The plaintiffs challenged the transfer, alleging the father lacked capacity or was subject to undue influence, and sought occupation rent from the daughter who continued living in the property.

The court preferred the evidence of the drafting lawyer and defence expert and found the father understood the nature and consequences of severing the joint tenancy and was not unduly influenced.

The court also rejected claims that the son held his interest in trust for the parents and declined to award occupation rent.

The plaintiffs’ claims were dismissed and the severance of the joint tenancy upheld.

Following dismissal of an application seeking issuance of a building permit for a lot created through a scheme found to constitute a “fraud upon the Planning Act,” the successful municipal respondent sought costs on a full indemnity basis.

The applicant resisted both the scale and quantum of costs.

The court held that while the applicant’s conduct constituted a deliberate attempt to circumvent the Planning Act, it did not amount to criminal fraud warranting full indemnity costs.

Considering the complexity of the planning and real property issues, the long procedural history, and the conduct of the parties, the court awarded costs on a substantial indemnity basis.

The respondent municipality was awarded $40,000 plus HST and disbursements.