David G. Price

The applicant, Ernest Below, and the respondent, Stacy Sheene, disputed costs following motions concerning the children's habitual residence and removal from Ontario.

The court had previously ruled that Florida had jurisdiction over the children and ordered Mr. Below to return them to Ms. Sheene.

This endorsement addresses the costs of those motions.

Ms. Sheene, as the successful party, sought costs on a full recovery basis, alleging bad faith by Mr. Below.

Mr. Below argued for each party to bear their own costs or for partial indemnity.

The court found Ms. Sheene presumptively entitled to costs but rejected the claim for full recovery, finding no bad faith by Mr. Below.

The court quantified Ms. Sheene's costs on a partial indemnity scale, adjusting hourly rates for inflation and assessing the reasonableness of time spent and disbursements.

The plaintiffs brought a motion to remove the defendants' counsel due to a conflict of interest, and a separate motion for leave to commence a derivative action on behalf of the Hindu Sabha Temple.

The defendants requested an adjournment of both motions, arguing that the motion to remove counsel could not be heard before or concurrently with the derivative action motion.

The court granted the adjournment, reserving costs, to allow both motions to be heard together at a later date, citing the procedural necessity of determining the derivative action motion first to establish the basis for the conflict motion.

This decision addresses the costs of previous motions concerning child access and financial disclosure.

The applicant, Mr. Leybourne, sought increased access to his daughter and financial disclosure, while the respondent, Ms. Powell, sought to restrict his access.

The court found Mr. Leybourne's offer to settle more favourable than the outcome and deemed Ms. Powell's conduct unreasonable for bringing an urgent motion and making unsubstantiated allegations.

Consequently, Mr. Leybourne was awarded costs on a full recovery basis.

The respondent was previously found in contempt for failing to comply with multiple financial disclosure orders in a family law proceeding.

Despite being given numerous opportunities and being fined, the respondent persisted in his failure to provide complete banking records, authorizations, and a proper business valuation.

The applicant sought orders for the respondent's incarceration and to strike his pleadings.

The court declined to order incarceration, finding it would not likely bring about compliance and would disadvantage the applicant.

However, applying the three-part test from Ferguson v. Charlton, the court struck the respondent's pleadings due to his egregious and deliberate non-compliance, allowing the applicant to proceed to an uncontested hearing.

The non-parties, Jason Bradimore and Straight Forward Auto Service Inc., moved to set aside a preservation order concerning exotic cars, arguing lack of notice and that the cars were not beneficially owned by the respondent, Stewart Wilson, but by his Trustee in Bankruptcy or their joint venture.

The court found that the non-parties had proper notice through their counsel and that the cars were effectively Wilson's property in name only, exhibiting "badges of fraud" in their transfer.

The motion to set aside the preservation order was dismissed, and costs were awarded to the respondent.

The appellant purchased a used vehicle from the respondents, who misrepresented its condition as 'top of the line' and a non-smoker's car.

The trial judge in Small Claims Court found misrepresentation and awarded $5,000 in damages as an 'equitable resolution'.

On appeal, the Divisional Court found the trial judge made a palpable and overriding error by failing to provide adequate reasons for his damages award and by failing to base the award on the vehicle's Black Book value.

The court also found an error of law in the trial judge's refusal to award pre-judgment and post-judgment interest.

The appeal was allowed, and damages were reassessed at $7,741.60 plus interest and costs.

This case addresses a dispute between separated parents over the choice of school for their two daughters.

The applicant father sought to keep the children in their current school, St. Elizabeth Seton, which they had attended since Junior Kindergarten.

The respondent mother wished to transfer them to St. Edmund, a school closer to her parents' home, citing a shorter commute and higher Fraser Institute rankings.

The court, applying the "best interests of the child" principle, found no compelling reason to change schools.

It prioritized the children's established friendships, stable environment, and relationship with the father over the mother's preferences and the academic rankings.

The court also critiqued the reliance on Fraser Institute rankings without expert evidence and noted the diminished weight of the OCL report due to lack of cross-examination.

The father's position was upheld, and the mother was ordered to pay costs.

The tenant appealed an eviction order made by the Landlord and Tenant Board for non-payment of rent.

The landlord brought a motion to dismiss the appeal on the grounds of delay, lack of merit, and breach of a previous court order requiring the tenant to pay rent.

The Divisional Court found that the tenant failed to perfect his appeal in time, that the appeal lacked merit as there was no evidence the Board failed to accommodate his disability, and that the tenant breached the order to pay rent.

The appeal was dismissed and the eviction order was affirmed.

The plaintiff's former lawyer moved to be removed as lawyer of record and for a charging order against any future settlement or judgment in a personal injury action.

The client had terminated the contingency fee retainer and attempted to negotiate directly with the defendant insurer to avoid paying legal fees.

The court granted the motion, finding that the lawyer had brought the action to the eve of trial and any future recovery would be through the instrumentality of his efforts.

The applicant sought expanded access to the parties' child, while the respondent moved for summary judgment granting her sole custody.

The court dismissed the applicant's motion for expanded access and granted the respondent's motion for sole custody, finding no genuine issue requiring a trial regarding custody and access.

The decision emphasized the child's best interests, the respondent's role as primary caregiver, and the applicant's inconsistent access, lack of stable accommodation, and failure to address support obligations and parental conflict.

The moving party sought state-funded counsel to pursue an appeal from a summary judgment order making her children Crown wards without access.

Applying the Supreme Court’s state-funded counsel framework, together with an additional low-threshold merits inquiry at the appellate level, the court held that the moving party had exhausted legal aid avenues, was indigent, and could not receive a fair hearing without counsel.

The court found several arguable grounds of appeal, including the treatment of the status review for one child, the failure to consider a six-month extension under the statute, the summary judgment analysis on access, and the use of judicial notice concerning the effect of access on adoption prospects.

Denying counsel would breach s. 7 of the Charter, so further proceedings were stayed and Ontario was ordered to fund counsel, transcripts, and reasonable disbursements.

On a motion to change under the Divorce Act, the moving party sought termination of child support and rescission of arrears on the basis that the parties' adult children were no longer dependent, while the responding party sought increased support and contribution to post-secondary expenses.

The court found a material change in circumstances arising from the children’s attendance at university away from home and the moving party’s increased income beginning in 2015.

Applying the Farden factors and the adult-child support framework under the Federal Child Support Guidelines, the court held that both children remained children of the marriage until completion of their first undergraduate degrees.

The court varied support using full table amounts during summer residence with the mother and one-third table amounts during the academic year, imputed income to both parties, fixed the moving party’s 66.44% share of qualifying s. 7 post-secondary expenses, rejected hardship arguments, and directed FRO enforcement of arrears to resume.

The applicant mother brought a motion to enforce a final order requiring the respondent father to provide annual income disclosure and automatically adjust child support.

The father argued this was effectively a motion to change the final order and should be heard alongside his own motion to change based on material changes in circumstances.

The court held that seeking compliance with an automatic adjustment clause is a matter of enforcement under Rule 1(8), not a motion to change under Rule 15.

The court ordered that the mother's enforcement motion be heard before the father's motion to change, as delaying enforcement would undermine the integrity of the existing order.

The respondents brought a motion requesting the motion judge recuse himself on the ground of reasonable apprehension of bias.

The motion was based on an exchange during a previous motion where the judge commented that he was 'thinking of making an order to wind up the whole operation' in response to respondents' counsel stating he was considering a motion to close part of the business.

The court dismissed the recusal motion, finding that the comments were intended to explore counsel's musings and remind him of the range of possible outcomes, and did not demonstrate bias or pre-determination of the issues.

The appellants successfully appealed a Small Claims Court judgment on the basis of procedural unfairness.

The parties could not agree on costs.

The appellants sought substantial indemnity costs of $11,616.60, while the respondent argued each party should bear its own costs.

The Divisional Court awarded the appellants costs on a partial indemnity scale, fixed at $11,635.12, finding the amount proportionate and within the reasonable expectations of the parties.

Following the dismissal of the self-represented plaintiff's $17 million action against the WSIB and WSIAT for lack of jurisdiction, the defendants sought costs.

The WSIB claimed $7,000 on a substantial indemnity basis, and the WSIAT claimed $3,000.

The court considered the principles of indemnification, reasonableness, and access to justice, noting that the plaintiff's claim, while lacking a viable cause of action in the Superior Court, was not frivolous or vexatious.

Recognizing the plaintiff's self-represented status and the need to balance access to justice with discouraging improper litigation, the court fixed costs at $3,000 payable to each defendant.

The applicant sought costs following a successful motion finding the respondent in contempt for unilaterally relocating the parties' children and dismissing the respondent's cross-motion.

The court found that the respondent acted unreasonably and in bad faith by willfully breaching a court order and making unfounded allegations of abuse to justify the relocation.

The applicant was awarded costs on a full recovery basis in the amount of $11,198.44.

The defendant vendor moved for partial summary judgment to release a $100,000 holdback from the sale of a commercial property intended for a gas station.

The holdback was agreed upon at closing because the plaintiff purchaser's environmental consultant had concerns about the vendor's Phase II environmental report.

The court found no genuine issue for trial regarding the delivery of the report itself, as the vendor provided what was contracted for.

However, the court found a genuine issue for trial regarding the remedy for the vendor's breach of a separate condition precedent to satisfy the purchaser's consultant's concerns before the funds could be released.

The motion for summary judgment was dismissed.

The applicant, a dependent spouse residing in a long-term care facility, brought a motion for directions and preservation orders against her deceased husband's estate and its beneficiaries.

The deceased had previously severed the joint tenancy of their matrimonial home using a Power of Attorney, sold the home, and transferred funds to himself and his niece (the Estate Trustee).

The court ordered the Estate Trustee to provide an informal accounting of the deceased's management of the applicant's property, her own management of the deceased's property, and her actions as Estate Trustee.

The court also granted an injunction preventing the dissipation of estate assets and ordered the beneficiaries to pay into court any monies received from the deceased or his estate.

In an uncontested trial, the applicant mother sought sole custody, retroactive and ongoing child support, and section 7 expenses for the parties' two children.

The respondent father had minimal contact with the children and paid minimal support since separation.

The court granted sole custody to the mother, imputed income to the father based on his 2014 earnings adjusted for inflation, and ordered him to pay retroactive and ongoing child support, as well as his proportionate share of section 7 expenses.

The mother was also awarded costs on a partial indemnity basis.