David G. Price

This was a family costs endorsement following an interim custody motion involving domestic violence allegations, competing claims of success, and a section 30 assessment.

The court held the applicant was substantially successful because the respondent sought to extend a temporary order effectively preserving his sole custody position, while the resulting order instead granted the applicant temporary sole custody.

Applying s. 131 of the Courts of Justice Act and Rule 24 of the Family Law Rules, the court found no basis for elevated costs but awarded partial indemnity costs.

The applicant recovered $9,163.85 inclusive of fees, HST, and disbursements.

This costs endorsement followed family motions concerning interim distribution of net sale proceeds of the matrimonial home, parenting access implementation, termination of a restraining order, and passport release.

The court held that the moving party was substantially successful and entitled to costs on a partial indemnity scale, but substantially reduced the claimed amounts because the parties were self-represented, the hourly rate claimed was unsupported, travel and waiting time were not recoverable, and several disbursements were disallowed.

Applying the general costs principles under s. 131 of the Courts of Justice Act and Rule 57.01, the court fixed a fair and reasonable award at $3,105.60 in fees plus $233.36 in disbursements.

The moving parties (respondents in the main application) brought a motion to set aside two previous court orders.

The first order dissolved a real estate partnership and required the moving parties to pay compensation, which they argued was obtained without disclosing that they had appealed an earlier order striking their pleadings.

The second order dismissed their motion for leave to appeal after they failed to attend the hearing.

The court dismissed the motion to set aside, finding that the non-disclosure was not material as the pleadings had been struck for non-compliance with court orders, and the failure to attend the leave motion was not due to inadvertence.

The moving party (mortgagor) sought leave to redeem a mortgage on a commercial property that was the subject of a foreclosure action, a fraud action, and construction lien actions related to environmental contamination.

The responding party (mortgagee) opposed the motion and brought a cross-motion to discontinue its foreclosure claim, arguing the mortgagor was attempting to avoid paying remediation costs and legal fees.

The court granted the mortgagor leave to redeem the mortgage upon payment of the principal, interest, and assessed legal costs, finding that the mortgagee's attempt to discontinue the foreclosure action would unfairly prejudice the mortgagor's equity of redemption.

The plaintiff bank brought a motion for summary judgment to enforce personal guarantees signed by the individual defendants for the indebtedness of their corporation.

The defendants argued their liability should be limited to 25% of the total debt, based on the statutory limit for small business loans and the title of the guarantee document.

The court found the guarantees unambiguously stated the liability was unlimited for non-small business loans, and the bank had no duty to inform the guarantors about future credit facilities.

The motion for summary judgment was granted.

The respondent mother brought a motion for interim child and spousal support, and for an order removing the applicant father as a joint trustee of the children's RESP.

The applicant brought a cross-motion to sever his claim for divorce.

The court found that the adult child attending university remained a child of the marriage and ordered the applicant to pay child support.

The court declined to impute income to the respondent or include her RRSP withdrawals in her income, and ordered the applicant to pay interim spousal support of $3,000 per month.

The court also invoked its inherent jurisdiction to remove the applicant as a trustee of the RESP due to his failure to cooperate in releasing funds for the child's tuition.

The claim for divorce was severed.

The applicant mother proceeded to an uncontested trial after the respondent father's pleadings were struck for failing to provide financial disclosure.

The court imputed an income of $100,000 to the father based on his lifestyle, business activities, and failure to disclose.

The court awarded retroactive and ongoing child support, a lump sum spousal support payment of $227,186.65 due to the father's history of non-compliance and hiding assets, an equalization payment of $129,697.04, and costs on a full recovery basis.

This was a costs decision following an estate dispute in which a beneficiary successfully recovered her share of legal fees and unauthorized executor compensation paid from the estate.

The court applied the general principles under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, emphasizing fairness, reasonableness, indemnity, and proportionality.

The proceeding was found to be neither complex nor of public importance, and no settlement offers affected the analysis.

Partial indemnity costs of $7,942.07 were awarded to the applicant, with apportionment between the respondents based on their respective responsibility for the underlying reimbursement amounts.

In an interpleader proceeding concerning completed criminal bail, the court determined entitlement to $20,000 deposited as cash bail for a non-resident accused.

The evidence established that the funds originated from the accused’s employer and were paid to counsel in trust for the accused’s benefit, then deposited with the criminal court for the limited purpose of securing compliance with the recognizance.

Applying trust principles, the court held that any assignment of the bail monies to the surety operated only during the life of the recognizance and did not confer a continuing beneficial interest after the criminal proceeding concluded without breach.

Once the bail purpose ended, the express trust was exhausted and the funds reverted to the settlor through counsel in trust.

Aftercare was added as a respondent, the funds were ordered paid to Gilmour Barristers in trust for remittance to Aftercare, and no costs were ordered.

In a family law costs endorsement arising from an acrimonious custody dispute, the applicant sought costs after the respondent withdrew a motion to change a prior parenting order.

The court declined to fix costs immediately and instead adjourned the costs motion to be heard after June 30, 2015, together with issues relating to access.

The court reasoned that leaving costs outstanding could incentivize both parties to work toward resolving access in the child's best interests.

The court also permitted further evidence regarding access and an updated report from the child psychiatrist.

This was a family law costs endorsement following an urgent motion concerning restoration of possession of a home and primary care of a child.

The applicant had been substantially successful on the underlying motion, and the court held that the respondent had acted unreasonably and in bad faith by advancing unsupported allegations of criminal misconduct and mental unfitness and by unreasonably opposing the motion.

Applying Rule 24 of the Family Law Rules, the court considered success, complexity, party conduct, counsel rates, time spent, comparable awards, and proportionality.

The court awarded full recovery costs of $20,000 inclusive of HST and disbursements, with pre-judgment interest at 3% from April 17, 2014.

This costs endorsement followed multiple motions in a product liability action continued by a bankruptcy trustee after the bankrupt plaintiff's discharge.

The court applied s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure to determine fair and reasonable partial indemnity costs, considering complexity, proportionality, party conduct, and the absence of settlement offers.

The court rejected the responding parties' attempt to revisit prior costs entitlement based on alleged delay, finding aspects of their motion conduct unreasonable and cost-increasing.

Costs of $46,430.97 were awarded to the trustee on the other motions, while the trustee was ordered to pay $2,924.36 for the undertakings motion.

Following trial in a dispute over money owed from the purchase of a restaurant, the successful plaintiff sought substantial indemnity costs based on delay and aggressive cross-examination.

The court held that costs generally follow the event on a partial indemnity basis and that no special circumstances justified elevated costs.

Applying s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court assessed the matter globally, considered complexity, divided success, proportionality, and reasonable hourly rates, and fixed costs against one defendant only.

Partial indemnity costs of $22,687.16, inclusive of HST and disbursements, were awarded, together with pre-judgment interest from October 3, 2014.

This costs endorsement followed summary judgment motions arising from a failed sale of a machine shop business and related limitations and pleading issues.

The successful plaintiff sought partial or substantial indemnity costs after defeating motions alleging the action was statute-barred, disclosed no cause of action, and failed to raise a genuine issue for trial on a counterclaim.

The court applied s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, held that fairness and reasonableness governed, and found no special circumstances justifying substantial indemnity costs.

Partial indemnity costs of $22,007.17 were awarded, with pre-judgment interest, apportioned two-thirds to one defendant and one-third to another.

This was a costs endorsement following a motion concerning an injunction registered against property and the effect of a stay arising from a consumer proposal under the Bankruptcy and Insolvency Act.

Although the defendants were successful on the underlying motion, the court declined to award costs after considering the plaintiffs' lack of assistance, counsel's non-attendance at the hearing, and the assistance provided by defence counsel in addressing the issues.

Applying the court's discretionary costs principles under s. 131 of the Courts of Justice Act and Rule 57.01(1) of the Rules of Civil Procedure, the court held that fairness and reasonableness required no costs order.

The plaintiff, a 97-year-old parishioner, brought an ex parte motion for certificates of pending litigation against two properties allegedly acquired or maintained using funds advanced or taken through a fiduciary relationship with a priest holding her power of attorney.

The court held the ex parte procedure was justified because there was evidence of a recent encumbrance and a risk the equity would be dissipated.

Applying the triable issue standard under s. 103 of the Courts of Justice Act, the court found a serious issue that the plaintiff had an equitable interest in both properties through breach of fiduciary duty, constructive trust, equitable lien, or tracing.

Certificates of pending litigation were ordered over both properties.

This costs endorsement arose from a family law contempt motion concerning non-compliance with prior orders requiring production of insurance documents and implementation of direct reimbursement for medical and dental expenses.

Although the court did not find contempt, it granted alternative compliance relief and held that the moving party was successful enough to attract costs under Rule 24 of the Family Law Rules.

The court rejected the argument that costs should be deferred, found the responding party's non-compliance unreasonable, and quantified costs by reference to hourly rates, time spent, proportionality, and fairness.

Costs of $3,088.97 were fixed and made payable forthwith with post-judgment interest, enforceable as child support.

On a motion concerning interim custody and access, the respondent mother sought reconsideration of an earlier interim arrangement that had placed the three eldest children primarily with the moving party father pursuant to a parenting assessment.

Newly disclosed police and Children’s Aid Society records alleged a pattern of domestic violence by the father toward the mother, sometimes in the presence of the children.

The court admitted the police and child protection records under hearsay exceptions and considered them in assessing the children’s best interests under the Divorce Act and Children’s Law Reform Act.

Finding credible evidence of domestic violence and domineering behaviour that undermined the mother’s role and posed a risk of harm to the children, the court rejected continuation of the existing arrangement.

The mother was granted temporary sole custody with a structured parenting schedule preserving significant contact with the father and safeguards pending investigation by the Office of the Children’s Lawyer.

Following a trial where the plaintiffs succeeded on liability for nuisance and trespass against a neighbouring trucking company, the Court of Appeal ordered that the plaintiffs recover their costs of the liability portion of the trial, with quantum to be determined by the trial judge.

The court considered the principles governing costs under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, including proportionality, indemnity, reasonable expectations of the losing party, complexity, and the hours reasonably expended.

The court rejected arguments that the plaintiffs’ trial preparation time was excessive and accepted that approximately 75% of the trial concerned liability rather than damages.

Applying partial indemnity rates and allocating costs proportionately, the court fixed the recoverable trial costs and apportioned joint and several liability for the trespass portion of the claim.

The moving party sought an order directing the Land Registrar to discharge an earlier injunction registered on title to a property that prohibited further encumbrances.

The injunction had been obtained by corporate plaintiffs alleging that the moving party, a director and shareholder, withdrew corporate funds and used them to purchase the property.

After filing a consumer proposal under the Bankruptcy and Insolvency Act, the moving party argued that the statutory stay invalidated or prohibited registration of the injunction.

The court held that the stay did not nullify the injunction but only stayed its enforcement, and that registration of the order during the stay did not justify discharging it after the proposal was rejected by creditors.

The motion was dismissed and the injunction remained registered to protect the plaintiffs’ claimed trust interest in the property pending trial.