Daniel Schwartz

The applicant brought a motion for extensive financial disclosure from the respondents and non-parties in the context of a bifurcated trial.

Phase 1 of the trial was ordered to solely determine the validity of the marriage contracts.

The applicant argued the disclosure was necessary to assess the value of the estate for the fairness consideration under the Levan test and to respond to the defence of laches.

The court dismissed the motion, finding that the exact value of the estate was not necessary for Phase 1 and that ordering the disclosure would undermine the purpose of the bifurcation order.

Following motions by both parties regarding refusals and questions taken under advisement during questioning, the Estate Trustee was largely successful.

Both parties sought costs of the motions.

The court determined the Estate Trustee's entitlement to costs as the successful party and fixed the quantum on a partial indemnity basis at $25,200, plus $500 for a prior appointment, payable by the applicant.

The respondent estate brought a motion on the first day of trial to amend its Answer to include the equitable defence of laches against the applicant's claim to set aside a marriage contract.

The applicant opposed the motion, arguing that laches is not a legally tenable defence to a statutory claim under section 56(4) of the Family Law Act and that the amendment would cause uncompensable prejudice.

The court granted the motion, finding that a claim for declaratory relief under section 56(4) is equitable in nature and can be defended by laches.

The court also found that any disadvantage to the applicant could be compensated by costs, an adjournment, or trial management.

In a bifurcated family law and estate proceeding, both the applicant and the respondent estate brought motions to compel answers to questions refused or taken under advisement during questioning.

The central issue for the first phase of the trial was the validity and enforceability of a 1986 marriage contract.

The court ordered the applicant to produce documents relating to her prior divorce and records from her physician and counsellor, finding them relevant to her understanding of domestic contracts.

The court dismissed the applicant's motion to compel the estate trustee to answer questions regarding the deceased's subsequent estate planning and relationships with lawyers, finding them irrelevant to the 1986 contract or overly broad.

The moving parties (the Crosslinx Defendants) sought an order under Rule 49.09 to enforce a settlement reached with the plaintiff.

The parties disagreed on the scope and form of the release to be signed by the plaintiff.

The court held that without prejudice communications were admissible to determine the scope of the settlement.

The court further held that the parties bargained for a standard general release, which implicitly includes claims over and contribution/indemnity clauses, and ordered the plaintiff to execute the release with those terms included, subject to minor clarifying revisions.

The applicant and the respondent estate both brought motions under Rule 20(5) of the Family Law Rules to question a non-party lawyer who had advised the applicant on a marriage contract over 30 years ago.

The non-party opposed the questioning, suggesting written interrogatories instead.

The court found that the three-part test for questioning a non-party was met, as the lawyer's evidence was crucial to the validity of the marriage contract and could not be easily obtained by other methods.

Given the lawyer's advanced age and the importance of his evidence, the court also ordered that the questioning be recorded to preserve the evidence for trial, analogous to Rule 36 of the Rules of Civil Procedure.

The applicant sought costs of $34,160 on a full recovery basis against a third-party witness who unsuccessfully opposed a motion to be questioned prior to trial.

The third party argued he was a non-party and sought his own costs.

The court found the third party was a party for the purposes of the motion under the Family Law Rules and that the applicant was the successful party.

Applying principles of proportionality and considering the respective offers to settle, the court awarded the applicant costs fixed at $10,000.

Following a successful motion by the respondent Estate to bifurcate the trial regarding the validity of a marriage contract, the Estate and the co-respondent sought costs.

The Estate claimed over $74,000 in partial indemnity costs, which the applicant argued was disproportionate.

The court agreed that the Estate's costs were excessive and disproportionate for a one-day motion, despite the high stakes and complexity.

The court fixed the Estate's costs at $35,000 and the co-respondent's costs at $2,500.

The defendants sought costs following their substantially successful motion to compel the production of documents over which the plaintiff claimed privilege.

The plaintiff argued that costs should be in the cause or that no costs should be awarded due to divided success.

The court found that the defendants were overwhelmingly successful based on the number of documents ordered produced and the issues resolved.

Applying the factors under Rule 57.01, the court fixed the defendants' costs at $30,000 on a partial indemnity scale, payable within 30 days.

The defendants brought a motion to compel production of documents from the file of the plaintiff's subrogating insurer and to examine a representative of the insurer.

The plaintiff claimed solicitor-client, litigation, and settlement privilege over the documents.

The court reviewed the documents and ordered production of those where the dominant purpose was claims assessment rather than litigation defence, and those where the settlement privilege exception applied.

The court also ordered the examination of the insurer's representative, finding the action was brought for the insurer's immediate benefit.