Deborah Swartz

This endorsement implements a direction from the Court of Appeal for Ontario, which remitted the matter back to the Superior Court of Justice to alter a final parenting order.

The court ordered that the father may request a review of the parenting time provisions, including supervised access terms, within 12 months of February 24, 2025.

This review will proceed via a Motion to Change under the Family Law Rules without requiring the father to demonstrate a material change of circumstances.

Any subsequent requests to vary the parenting time orders will require demonstrating a material change of circumstances, sensitive to the fact that the case involves an adult child who cannot withdraw from parental charge.

The moving party requested an urgent Case Conference but filed a 16-page, single-spaced brief with improper attachments, breaching the Practice Direction.

The court refused to proceed with the conference on the documents filed, emphasizing that counsel must follow the Rules and Practice Directions and that chronic inattention to them is unacceptable.

The matter was adjourned to allow for the filing of corrected briefs.

Following the dismissal of the applicant's family law application via a summary judgment motion, the respondent sought partial indemnity costs of $7,500.

The applicant, who had repeatedly delayed proceedings, failed to file responding materials, and ignored previous costs orders, argued she should pay no costs due to financial hardship and health issues.

The court rejected the applicant's arguments, finding her litigation conduct unacceptable and her claims of ignorance of the process not credible.

The court ordered the applicant to pay $6,500 in costs to the respondent, emphasizing the need to sanction inappropriate litigation behavior and achieve proportionality.

The appellant father appealed a trial judge's decision finding his child in need of protection and placing the child in the extended care of the Society.

During the trial, the father brought a non-suit motion at the close of the Society's case.

The trial judge failed to put the father to his election on whether to call evidence, reserved her decision, and subsequently ruled on a final basis that the child was in need of protection before the father could present his case.

The Divisional Court held this was a fundamental procedural error that deprived the father of his right to be heard on the protection issue.

The appeal was allowed and a new trial ordered.

This decision addresses the costs award following an application where the parties had mixed success.

The court found the Applicants were the more successful parties overall, despite the Respondent's partial success in confirming his tenants' right to use a right of way.

The court determined that the Respondent's unreasonable conduct, including installing a dock and cameras and interfering with the Applicants' property, necessitated the litigation.

Considering the nature and complexity of the case, the parties' conduct, and the remedies obtained, the court awarded the Applicants $25,000 in partial indemnity costs, inclusive of HST and disbursements, under Rule 57.01(1) of the Rules of Civil Procedure and the Courts of Justice Act.

The applicants, waterfront property owners, sought to restrict the respondent's use of a deeded right-of-way (ROW) over their land, arguing against its "commercialization" by the respondent's AirBnB tenants and the installation of a dock and surveillance cameras.

The respondent, owning a landlocked abutting property, contended his tenants were invitees entitled to use the ROW and that the dock was for safety.

The court ruled that the respondent's tenants could use the ROW as invitees, finding this a reasonable use of cottage property.

However, the court determined that the installation of a dock and cameras, and general trespass, were unreasonable expansions of the easement not necessary for water access.

This is a costs decision following a 5-day family law trial.

The court found the Applicant, Lynne Baribeau, to be the more successful party overall, despite mixed success on various issues including child support, spousal support, and equalization of net family property.

The Respondent, Marc Baribeau, had credibility issues regarding asset valuation, while the Applicant's involvement of children was problematic.

Considering factors such as party behavior, offers to settle, and the proportionality of fees, the court awarded the Applicant $25,000 in inclusive costs, rejecting the Respondent's assertion of inability to pay given his higher income.

The respondent father brought an unserved 14B motion seeking sole custody, primary residence, child support, and section 7 payments from the applicant mother, and to stop his own child support obligation, citing urgency due to COVID-19 and wage loss.

The court, at the triage stage, dismissed the motion due to lack of service, insufficient information to determine urgency, absence of a proper Motion to Change, and lack of financial disclosure.

The court advised the respondent to obtain legal advice and re-file with proper materials and service.

This costs endorsement arose from a motion to change initiated by the respondent father seeking specified in-person access to his child.

The applicant mother opposed the motion and sought adjustments to child support.

Following recommendations from the Office of the Children's Lawyer for minimal contact, the parties settled all substantive issues via a consent order, which provided for electronic communication only and did not grant the father his requested in-person access.

The court found the applicant mother to be the substantially successful party, noting the respondent's unreasonable conduct, including delays in financial disclosure, quitting a high-paying job, and relocating to Morocco, which impacted the mother's ability to pursue increased child support.

Despite the settlement, the court determined that costs were appropriate where success could be clearly ascertained.

The court awarded the applicant partial indemnity costs.

The parties separated after an 18-year marriage.

The applicant sought spousal support, child support for two adult children, and equalization of net family property.

The court found the applicant entitled to compensatory and needs-based spousal support, ordering $551 per month retroactively.

The court rejected the respondent's argument that the adult children's hostile conduct relieved him of his child support obligations, finding no unilateral termination of the relationship.

For equalization, the court preferred the applicant's valuation of chattels and ordered the respondent to pay an equalization payment of $168,001.58.

To satisfy this obligation, the court ordered a $150,000 pension transfer (plus tax gross-up) to the applicant, with the remainder to be paid from the respondent's equity upon the sale of the jointly owned matrimonial home.

The Applicant sought to terminate his spousal support obligation, while the Respondent requested its continuation and increase.

The court treated the matter as an originating application under the Divorce Act, upholding the parties' separation agreement as valid and enforceable.

The court rejected the Applicant's arguments that post-separation income increases and the Respondent's repartnering should negate his support obligation.

It emphasized the strong compensatory nature of support in a long-term marriage, the Respondent's contributions to the Applicant's career, and the need to consider post-separation income, including a portion of a pension lump sum payout, applying principles from Boston and Halliwell.

The court ordered spousal support to continue at an increased amount and included a provision for life insurance.

The applicant brought a motion seeking to foreclose the respondent from participating in an upcoming motion to strike because he remained in breach of an $8,012.82 costs order.

The respondent argued that his recent bankruptcy filing stayed the enforcement of the costs order and that the applicant was required to file a proof of claim.

The court held that the costs order related to spousal support, survived bankruptcy, and was not stayed.

The court ordered the respondent to pay the outstanding costs by a specific date, failing which his ongoing breach would be considered during the motion to strike.

The applicant Society brought a motion for summary judgment seeking an order that the child, who was born with drug withdrawal symptoms, continues to be in need of protection and should be placed in extended Society care.

The respondent parents, who struggled with ongoing substance abuse and failed to attend access visits, did not file responding materials or attend the motion.

The court granted the summary judgment, finding no genuine issue requiring a trial and that it was in the child's best interests to be placed in extended care for the purpose of adoption.

The applicant Society brought a motion for summary judgment seeking an order that the 15-month-old child be made a Crown ward without access.

The mother was noted in default, and the father opposed the motion, seeking the child's return under supervision.

The court found no genuine issue for trial, noting the parents' ongoing substance abuse issues, lack of stable housing, and failure to engage in services.

The court concluded that Crown wardship without access was in the child's best interests and granted the summary judgment.

The applicant brought a motion to change a final order, seeking to terminate or reduce his spousal support obligations retroactive to his retirement date, and to remove the respondent from his life insurance policies.

The court found a material change in circumstances due to the applicant's retirement and reduced income, but noted the respondent's continuing financial need.

The court ordered a reduction in ongoing spousal support but declined to make it retroactive.

The court also permitted the applicant to remove the respondent from his life insurance policies, provided he confirms she is the irrevocable beneficiary of his survivor pension.

The respondent brought a motion while having an outstanding costs order of approximately $8,000 from a previous appearance.

The applicant argued that the respondent's failure to pay the costs order should bar his current motion under Rule 1(8) of the Family Law Rules.

The court found that the respondent had the financial means to pay the order but chose not to do so.

Applying the three-step test for non-compliance, the court declined to exercise its discretion to exempt the respondent from sanctions.

The respondent's motion was dismissed without prejudice to his right to return the motion for hearing upon payment of the outstanding costs.

The applicant children's aid society brought a motion for summary judgment seeking Crown wardship of a young child without access.

The mother, who has a significant global intellectual delay, opposed the motion and sought a trial to have the child returned to her care under supervision.

The court found no genuine issue requiring a trial, as the mother's intellectual limitations prevented her from safely parenting the child, who also has special needs.

The motion was granted, the child was made a Crown ward, and no access was ordered.