David A. Reid

The Court of Appeal for Ontario dismissed Kirk Richard Iredale’s appeal from the Superior Court’s order regarding equalization of assets and spousal support following the breakdown of his marriage to Carol Jeanette Dougall.

The court held that the trial judge properly found the equalization payment remedied any unjust enrichment and that a time-limited spousal support award was appropriate.

The court also upheld the trial judge’s refusal to admit fresh evidence post-trial.

The applicant brought a motion alleging the respondent breached a Trial Scheduling Endorsement Form (TSEF) by failing to serve his and his witnesses' affidavits in chief by the stipulated deadline.

The respondent argued the deadline was flexible due to trial adjournment.

The court found the respondent in breach, emphasizing that TSEF timelines are firm orders.

As a consequence, the court ordered that any of the respondent's witnesses whose affidavits were not served by October 25, 2024, would be prohibited from testifying at trial, subject to the trial judge's further order.

The applicant was also awarded costs for the motion.

The parties separated after a 14-year marriage with four children.

The applicant father sought child support deviation under shared custody and undue hardship provisions, as well as spousal support and equalization.

The court found the 40% shared custody threshold was only met for one child and rejected the undue hardship claim.

The court awarded the applicant spousal support of $875 per month for nine years on both compensatory and non-compensatory grounds, noting his contributions to the respondent's nursing career and his post-separation economic disadvantage.

Equalization values were also determined.

This trial addressed custody, care schedule, child support, and a constructive trust claim between unmarried parents.

The court granted sole custody of the child to the respondent mother, Amanda Mattson, finding that joint custody was not in the child's best interests due to the parents' significant communication difficulties and mistrust.

The applicant father, Matthew Bruce Ince, was granted an expanded care schedule, including alternating weekends and shared summer holidays, but his proposed equal 2-2-3 schedule was rejected as too disruptive.

Child support was set at $1,079 per month, with annual adjustments.

The court also found unjust enrichment regarding the mother's contributions to the father's former home and ordered the father to pay the mother $8,780.50.

The applicant mother brought a motion seeking interim sole custody of the parties’ three-year-old child, along with structured access to the respondent father and child support.

The respondent brought a cross-motion seeking shared custody and continuation of a week‑about parenting arrangement that had been implemented after separation.

Applying the best interests test under the Children’s Law Reform Act, the court found persuasive evidence that the child was struggling emotionally with the weekly residential rotation and that the arrangement was not appropriate given the child’s young age and circumstances.

The court held that the status quo principle did not prevent change where credible evidence demonstrated harm or instability.

Interim sole custody was granted to the mother with liberal access to the father and involvement of the Office of the Children’s Lawyer.

At trial, the defendants sought a further adjournment after a history of previous adjournments and their failure to attend court.

The court acknowledged the difficulty faced by defence counsel but noted that the defendants were not present for trial and that the conditions set out in an earlier endorsement had been met.

As a result, the court dismissed the defence and counterclaim and directed that the action proceed as an undefended matter.

The plaintiff was permitted to requisition default judgment through the Registrar pursuant to the Rules.

Following interim motions where the respondent was largely successful in obtaining spousal and child support, the court determined costs.

Both parties were penalized for unreasonable behaviour: the respondent for failing to provide timely educational disclosure for an adult child, and the applicant for unilaterally removing the respondent from his benefits plan.

The applicant was ordered to pay net costs of $4,000.

The court also ordered the respondent to provide ongoing educational disclosure for the children as a condition of receiving child support.

The accused was charged with three counts of sexual assault contrary to section 271 of the Criminal Code.

The Crown alleged that on July 19, 2013, the accused grabbed the complainant's breasts from behind at a bar in Goderich.

On July 20, 2013, the Crown alleged the accused groped the complainant in a taxi and subsequently engaged in non-consensual sexual intercourse with her at the accused's best friend's residence.

The accused's defence was that the first incident did not occur and that the second and third incidents were consensual.

The trial judge found the complainant to be a credible and reliable witness and rejected the accused's evidence as discordant with ordinary behaviour.

The court found the accused guilty on counts 2 and 3 but acquitted him on count 1 due to insufficient evidence of identification in the crowded bar setting.

On an interim motion in a parenting dispute, the respondent father sought an order establishing an alternating-week parenting schedule for the parties’ two children pending trial.

The mother opposed the change, arguing that the existing primary-residence arrangement constituted a status quo that should not be disturbed.

Evidence from the Office of the Children’s Lawyer and its clinical investigator indicated that the children, who were of sufficient maturity, clearly expressed a preference to spend equal time with each parent and were affected by ongoing parental conflict over access.

The court held that although preservation of the status quo is a relevant consideration on interim motions, it is not an immutable principle and must yield to the children’s best interests.

Finding that an alternating-week schedule would provide greater certainty, reduce parental conflict, and reflect the children’s wishes without significantly disrupting their routines, the court granted the interim order.

The moving defendant sought a declaration that a subcontractor’s construction lien was invalid for failure to preserve the lien in accordance with s. 34(2) of the Construction Lien Act after the claim for lien was delivered to a municipality’s deputy clerk rather than directly to the clerk.

The court held that the lien was properly preserved because the deputy clerk received the document within the statutory period and delivered it to the municipal clerk the same day.

The court further found that s. 228(2) of the Municipal Act, 2001 grants deputy clerks the powers and duties of the clerk, including receipt of lien claims.

A literal interpretation requiring service only on the clerk would create an impractical and absurd result where service would be impossible if the clerk were unavailable.

The motion seeking to invalidate the lien and return the security bond was dismissed.

The moving party sought leave to appeal a costs order issued following settlement of family law proceedings involving custody, access, support, and property issues.

The trial judge had awarded costs to the other party after concluding that although success was divided, that party prevailed on the most complex and time‑consuming issues, particularly child and spousal support requiring extensive financial disclosure and expert accounting evidence.

The moving party argued the trial judge erred in fact‑finding, improperly awarded substantial indemnity costs, and created a reasonable apprehension of bias by releasing the decision before reply submissions were filed.

The court held that leave to appeal costs orders is granted only in obvious cases of error in principle or plainly wrong outcomes and found that the trial judge properly exercised discretion.

The motion for leave to appeal was dismissed.

The applicant sought costs against the respondent following the dismissal of a motion to change custody and access arrangements.

The original order from 2008 granted sole custody to the applicant with supervised access for the respondent.

The respondent brought a motion to change seeking unsupervised access in 2010.

After an interim settlement in 2012 that the respondent failed to comply with, the matter proceeded to trial where the motion to change was dismissed for lack of material change in circumstances.

The court awarded costs to the successful applicant.

The father brought a motion to change a 2003 custody order to change the primary residence of his 13-year-old twin boys from the mother's home to his own.

The mother opposed the motion, citing concerns about the father's parenting ability, alcohol consumption, and past conduct.

The Office of the Children's Lawyer conducted an assessment and recommended the change, noting the boys' strong, independent, and genuine desire to live with their father.

The court found a material change in circumstances and held that respecting the mature children's wishes was in their best interests.

Joint custody was ordered, with primary residence transferred to the father.

A child protection proceeding under Part III of the Child and Family Services Act involving two children who had been in the care of their paternal grandparents pursuant to a section 57.1 custody order.

The children were apprehended due to concerns about physical harm.

The paternal grandparents agreed they could no longer care for the children.

The biological parents each sought placement of the children with them, alternatively seeking access.

The court found the children were in need of protection and made a crown wardship order, granting access to the paternal grandparents but denying access to the biological parents.