Cheryl Siran

This decision addresses costs following a four-day trial where the applicant, JMS, was awarded a net recovery of $34,249.30 after a set-off for the respondent's, Bell's, successful counterclaim.

Both parties sought costs, but no Rule 49 offers attracted formal cost consequences.

Despite the trial judge's initial statement of divided success, the court found JMS to be the successful party for costs purposes, having succeeded on 85% of its claim compared to Bell's 9% counterclaim success.

Bell's offer was deemed not "sufficiently close" to JMS's recovery to trigger cost consequences.

The court fixed costs payable by Bell to JMS at $37,500 plus HST and disbursements.

This endorsement details a case management/trial management conference held via Zoom.

Counsel reported progress in preparing for trial, including exchanging statements of agreed facts, Scott Schedules, and documents.

They are considering pleading amendments and the use of affidavits for evidence-in-chief to shorten the trial.

The parties agreed to be placed on a trial list and to conduct a further pre-trial/trial management conference before Justice Fitzpatrick, who previously held a case management role.

The court ordered the matter to be placed on a running list for trial commencing October 10, 2023, for four days by Zoom, with the running list to be spoken to on October 4, 2023.

A further pre-trial/trial management conference before Fitzpatrick J. is to be scheduled before the end of June.

The defendants brought a motion to add Brian Kraynyk as a party to their counterclaim, alleging fraud and negligent misrepresentation.

The motion was dismissed because the two-year limitation period for adding Mr. Kraynyk had expired.

The court found that the defendants had knowledge of the underlying issue (failure to install a septic tank) well over two years prior to bringing the motion, and their claim of newly discovered evidence was not credible.

While the motion to add a party was dismissed, the motion to amend the statement of defence was granted, excluding any paragraphs referencing the proposed added party and personal claims against him.

The applicant father brought a motion to change an existing joint custody order, seeking sole custody and primary residence of the 12-year-old child.

The child had been living with the respondent mother in northwestern Ontario, while the father lived in southern Ontario.

The court found a material change in circumstances due to the mother's inadequate care, her failure to facilitate access, and the child's strongly expressed wish to live with his father.

Applying the best interests of the child test under section 24 of the Children's Law Reform Act, the court awarded sole custody to the father, finding he offered a more stable plan and was better able to meet the child's needs.

The access schedule was varied to provide fewer but longer visits, and no child support was ordered given the mother's low income and the costs of access.

Following a four‑day family law trial addressing custody, child support, and spousal support, the court determined the issue of costs.

The applicant had served offers to settle prior to trial that were as favourable as or more favourable than the final judgment, engaging Rule 18(14) of the Family Law Rules.

Applying the presumption under Rule 24 that the successful party is entitled to costs and considering the reasonableness of the claimed fees and time spent, the court concluded that substantial recovery was appropriate.

However, the court reduced portions of the pre‑offer costs due to uncertainty regarding conference-related time and the presumption that conferences without a costs order conclude without costs.

The court awarded a reduced lump sum for fees and disbursements, enforceable as support through the Family Responsibility Office.

Following separation, the applicant sought joint custody of two children with primary residence, child support, and spousal support.

The court considered the best interests of the children under s. 16 of the Divorce Act and noted that both parents were loving and capable, and that the children were thriving under the existing parenting arrangement.

Despite communication difficulties between the parties, the evidence showed that they had been able to cooperate through written communication and make joint decisions affecting the children.

The court ordered joint custody with the children’s primary residence with the applicant and maintained the existing parenting schedule tied to the respondent’s work shifts.

Guideline child support was ordered along with fixed-term spousal support and provisions regarding section 7 expenses and life insurance security.

Owners of forested property commenced an action alleging neighbouring landowners constructed a roadway that encroached onto their land, cutting trees and altering the terrain.

The defendants denied liability and advanced a counterclaim for defamation arising from letters sent to neighbours describing the dispute.

The court accepted survey evidence establishing that a road approximately six metres wide encroached for nearly 200 metres onto the plaintiffs’ land and concluded the defendants intentionally continued using the road despite notice and a court order.

The court found the conduct constituted trespass and awarded compensatory damages for rehabilitation costs, survey expenses, and related losses, as well as damages at large and punitive damages.

The counterclaim in defamation was dismissed for lack of evidence of defamatory publication or reputational harm.

Following a marriage of approximately 13.5 years, the respondent spouse sought spousal support after the parties resolved custody, access, child support, and equalization.

The respondent argued entitlement on compensatory and non‑compensatory bases, claiming he sacrificed career advancement and assumed caregiving responsibilities while the applicant advanced her career and earned significantly more income.

The court applied s. 15.2(4) and (6) of the Divorce Act and considered leading authorities on spousal support entitlement.

The court found no evidence that the respondent suffered economic disadvantage due to the marriage or its breakdown and concluded he remained economically self‑sufficient.

The respondent’s claim for spousal support was therefore dismissed.

The mother brought a motion for various interim orders in a family law proceeding following the parties' separation.

The court granted the mother interim custody of the children, noting the high conflict and the father's guilty plea to assaulting the mother.

The court also granted a restraining order against the father, ordered him to maintain health benefits for the mother, and awarded interim child and spousal support.

The mother's request for an interlocutory injunction for exclusive possession of a vehicle was dismissed as her pleadings lacked the required undertaking as to damages and she failed to meet the RJR-MacDonald test.

Interim family law motions arising from a separation following a 13‑year marriage addressed parenting arrangements, support, exclusive possession of the matrimonial home, and sale of the home.

The court declined to determine custody pending further information and the involvement of the Children’s Lawyer, but ordered an interim alternating weekly residence schedule for the child.

Interim child support and spousal support were ordered based on the parties’ incomes and the circumstances of the marriage.

Requests for exclusive possession of the matrimonial home and for a non‑removal order preventing relocation of the child were denied, while the parties’ agreement to list and sell the matrimonial home was incorporated into the order.

Interim family law motions arising from a separation following a 13‑year marriage addressed parenting arrangements, support, exclusive possession of the matrimonial home, and sale of the home.

The court declined to determine custody pending further information and the involvement of the Children’s Lawyer, but ordered an interim alternating weekly residence schedule for the child.

Interim child support and spousal support were ordered based on the parties’ incomes and the circumstances of the marriage.

Requests for exclusive possession of the matrimonial home and for a non‑removal order preventing relocation of the child were denied, while the parties’ agreement to list and sell the matrimonial home was incorporated into the order.