Darlene L. Summers

The applicant father brought a motion to strike the respondent mother's Answer due to her willful breach of multiple disclosure and costs orders.

The respondent failed to participate in the motion.

The court found the respondent's non-compliance to be exceptional, given the financial issues, the children's support, and the respondent's abandonment of her financial obligations.

The motion was granted, striking the respondent's Answer and claims, and the applicant was awarded $5,000 in costs, allowing the case to proceed to an uncontested trial on financial issues.

This case involved a trial of parenting issues between separated parents.

The father sought equal residential parenting time and sole decision-making, while the mother sought to maintain the existing alternating weekend arrangement and sole decision-making.

The Office of the Children's Lawyer represented the children.

The court considered the children's best interests under the Divorce Act, noting the mother's emotional struggles and influence on the children's views.

The court ordered an equal residential schedule (2:2:5:5 rotation) and split decision-making authority, with the father having authority over health care and other matters, and the mother over education.

This costs endorsement follows a prior decision where the Intervenors' motion to stay proceedings against the Respondent, William Ndze Fuhgeh, was granted.

The Intervenors sought full indemnity costs, while Mr. Fuhgeh sought costs for minor successes on his cross-motion.

The court found the Intervenors were the successful party and presumptively entitled to costs, despite not achieving their primary relief.

The court awarded partial indemnity costs to the Intervenors, reducing their claim for time spent on the unsuccessful dismissal argument and preparation for a one-hour motion.

Mr. Fuhgeh's request for costs was denied, and his affidavit regarding financial hardship was not accepted as a shield against costs.

The Intervenors moved to dismiss or, alternatively, stay the respondent's ongoing motions to set aside prior orders, citing unpaid costs awards against the respondent.

The applicant, Ms. Bernard, supported the stay.

The respondent brought a cross-motion challenging the scope of the Intervenors' motion and seeking a response to a Request to Admit.

The court dismissed the respondent's cross-motion, finding his requests were not persuasive or for the current forum.

The court declined to dismiss the respondent's originating motions, noting it was unusual for an intervenor to seek such relief and that proper procedure was not followed by the primary parties.

However, the court granted the stay of the respondent's motions until all outstanding costs awards were paid, citing the respondent's failure to obey orders and the unfairness of requiring parties to incur further costs.

The respondent was successful on a motion for relief against deemed admissions arising from the applicant's Requests to Admit.

The court initially proposed a costs award of $5,000 against the applicant, subject to written submissions.

The applicant argued no costs should be payable, while the respondent sought $10,002.20 based on partial indemnity.

The court rejected the applicant's arguments, noting his Requests to Admit were improper and his conduct unnecessarily increased costs.

The court awarded the respondent $10,000 in partial indemnity costs.

The applicant brought an urgent motion seeking exclusive possession of the matrimonial home, a restraining order, child and spousal support, and parenting orders.

The court rescinded the ex parte restraining order but continued the applicant's exclusive possession of the home, ordering her to pay its carrying costs.

The respondent was ordered to pay table child support and his proportionate share of section 7 expenses, while the claim for temporary spousal support was dismissed due to lack of ability to pay.

The court also made temporary orders regarding medical decision-making, parenting time, and non-removal of the children from Ottawa.

Following a five-day trial on parenting time and child support, the applicant sought costs on a full indemnity basis for all steps, including issues settled just prior to trial.

The court held that costs could be awarded for the settled issues because the applicant was clearly successful on primary residence and decision-making.

Although the applicant's offers to settle did not trigger full indemnity costs because they contained terms the court could not order, the respondent's unreasonable litigation conduct, including failure to comply with disclosure orders, justified an elevated partial recovery costs award of 70%.

The respondent brought a motion to enforce a final consent order requiring the parties to resolve future spousal support disputes through arbitration.

The applicant opposed the motion, arguing that the order itself was not a valid arbitration agreement and she preferred to proceed in court via a Motion to Change.

The court held that it has jurisdiction to enforce a consent order to arbitrate by compelling the parties to execute a compliant family arbitration agreement.

The court ordered the applicant to sign the arbitration agreement and stayed her court proceeding.

The respondent father brought a motion to vary an interim parenting order to lift the supervision requirement, increase his parenting time, and obtain joint decision-making authority.

The court found that the father had failed to comply with previous court orders, including refusing to cooperate with the Office of the Children's Lawyer and failing to disclose mental health records.

Applying the test under the Children's Law Reform Act, the court held there was no compelling reason to vary the status quo before trial, as the child was doing well under the current regime.

The motion was dismissed.

The moving party brought a motion under Rule 18(13) of the Family Law Rules to enforce an alleged settlement agreement regarding the transfer of the jointly owned matrimonial home.

The moving party relied on an email exchange between counsel, which culminated in the responding party's counsel stating they 'finally have a deal' and requesting a formal document.

The court found that the email exchange did not contain all the essential terms of a binding contract, leaving critical issues such as mortgage assumption and line of credit discharge unresolved.

The motion was dismissed, as the communications amounted only to an unenforceable agreement to agree.

The respondent mother brought a motion to set aside a default order that permitted the applicant father to proceed to an uncontested trial on parenting and property issues.

The mother had failed to file an Answer after relocating to British Columbia following a mental health crisis.

Applying the five-factor test for setting aside default judgments, the court found that while the motion was not brought promptly, the mother had a plausible excuse due to her mental health and lack of counsel.

Emphasizing that parenting decisions should be made on a full evidentiary record, the court set aside the default order on terms, allowing the mother to file an Answer while granting the father temporary sole decision-making responsibility and costs thrown away.

This costs endorsement arose from three events in a family law matter where the respondent mother removed children from the matrimonial home and withheld them.

The applicant father brought an urgent motion, a substantive motion for interim decision-making and parenting, and a review motion.

The court found the applicant to be the successful party on the primary issues of decision-making and parenting time.

The respondent's conduct was deemed unreasonable, and she failed to accept a reasonable offer to settle from the applicant.

Considering the applicant's success, the respondent's unreasonable behaviour, and the applicant's offer to settle, the court ordered the respondent to pay costs of $17,250 to the applicant.

The respondent, Ms. Switzer, brought a motion seeking relief regarding two Requests to Admit served by the applicant, Mr. Switzer.

She sought confirmation that her responses were timely or, alternatively, permission to withdraw any deemed admissions and an extension of time.

The applicant opposed, seeking to rely on the deemed admissions.

The court found the first Request to Admit non-compliant due to lack of signature and the second Request to Admit's response was deemed timely due to delayed receipt.

The respondent's motion was granted, allowing withdrawal of deemed admissions and extending time for response.

The respondent mother brought a motion at the opening of a family law trial to determine the admissibility of evidence regarding the applicant father's professional misconduct as a police officer.

The father argued that the Police Services Act created an absolute privilege over all information related to his disciplinary proceedings.

The court held that while documents prepared for the disciplinary process and testimony from those involved are inadmissible and non-compellable, the underlying facts of the misconduct, the charges, and the outcome are provable facts at trial.

The court also rejected arguments that the father had waived privilege or that the Divorce Act paramountcy overrode the provincial statute.

The applicant brought a motion to strike the respondent's pleadings, for summary judgment, and for interim child and spousal support.

The respondent, who had relocated to Switzerland, failed to comply with prior costs and travel expense orders and did not participate in the motion.

The court declined to strike the pleadings or grant summary judgment, finding that payment of the outstanding amounts from the respondent's share of the home sale proceeds was a sufficient remedy and that genuine issues for trial remained.

The court ordered retroactive and ongoing interim child and spousal support, to be paid from the respondent's share of the sale proceeds, and released $50,000 to the applicant from her share.

The applicant mother brought a motion seeking primary residence of the parties' three children, child support, and exclusive possession of the matrimonial home.

The respondent father brought a cross-motion seeking primary residence, exclusive possession, and the sale of the home.

After considering the children's views and preferences, the court granted the mother primary residence and exclusive possession of the home, finding it in the children's best interests.

The father was ordered to pay table child support, and both parties were ordered to provide further financial disclosure.

The respondent father brought an urgent motion to vary a temporary parenting order to change the children's primary residence to his home, or alternatively for shared parenting.

The applicant mother brought a cross-motion to suspend the father's parenting time and order reunification counselling, alleging parental alienation.

The court found no material change in circumstances that would compel a change to the interim order, noting the conflicting evidence and the ongoing involvement of the Children's Aid Society.

Both motions were dismissed without prejudice, pending the release of a parenting assessment and CAS report.

The moving party brought a motion to strike the responding party's pleadings and for costs due to her failure to comply with a prior disclosure order.

The court found that the responding party had disobeyed the order and that her non-compliance was willful, despite her claims that her former lawyer was responsible.

However, the court concluded that striking pleadings is a remedy of last resort and the non-compliance was not egregious enough to warrant such a drastic measure.

The court dismissed the request to strike pleadings but ordered the responding party to pay $5,000 in costs and to produce the remaining outstanding disclosure forthwith.

The parties separated after a 30-year relationship.

The applicant brought a claim for equalization of net family property, post-separation adjustments, and other financial issues.

The court determined the equalization payment and post-separation adjustments, ordering the applicant to pay the respondent $450,549.69 via a pension transfer.

The court also ordered the applicant to pay $6,300 in spousal support arrears and a $500 lump sum for retroactive spousal support, while dismissing the claim to apportion their adult son's student debt.

The applicant wife moved for an order under the Partition Act for the sale of the jointly owned matrimonial home prior to trial.

The respondent husband opposed the motion, relying on a temporary without prejudice consent order that granted him exclusive possession.

The court held that a material change in circumstances was not required to vary a temporary without prejudice order.

Finding that the husband had no competing interests under the Family Law Act that would defeat the wife's prima facie right to sale, the court granted the motion and ordered the home to be listed for sale.