Diane Klukach

The Applicant (Mother) sought orders for the immediate sale of the matrimonial home, dispensing with the Respondent's (Father's) consent for the sale process, and vacant possession.

The Respondent consented to the sale and vacating but opposed dispensing with his consent, arguing for repairs and a say in the process.

The court found the Respondent unreasonably withheld consent given his lack of cooperation, financial non-contribution to the home, and precarious financial situation.

The court granted the Applicant's requests, ordering the sale, vacant possession, and dispensing with the Respondent's consent for the sale process.

Net proceeds are to be held in trust, and parties are directed to mediation for distribution.

The applicant wife brought a motion to dispense with the respondent husband's consent to sell the matrimonial home and for partition and sale, arguing the husband was unreasonably obstructing the sale.

The husband opposed, wishing to purchase the property himself or sell it for a higher value.

The court found the husband's reasons for opposing the sale were speculative and not legitimate, noting the ongoing erosion of equity due to carrying costs financed by a joint line of credit.

The court granted the wife sole authority to proceed with the sale, negotiate offers within 5% of the listing price, and complete the closing without the husband's consent, dismissing his opposition.

The applicant sought leave to introduce fresh evidence on an appeal of an arbitration decision concerning the children's school.

The fresh evidence pertained to the applicant's acquisition of the proposed private school, his daily presence there, and the school's operational status during the pandemic.

The respondent opposed the admission of this evidence.

The court applied the flexible fresh evidence test applicable in family law cases involving children's welfare and granted the motion, finding the evidence was new, credible, and potentially relevant to the appeal's outcome, particularly given the original arbitration was a close call.

The applicant brought a motion to set aside a prior costs order requiring payment of approximately $32,974.57 following earlier child support litigation.

The applicant alleged that the respondent had a special fee arrangement with his law firm which was not disclosed to the court and would have affected the costs determination.

The court applied the stringent test for setting aside an order based on newly discovered facts, as articulated in West v. West.

The court found the evidence did not establish the existence of a special fee arrangement but rather a payment mechanism involving internal fee credits used to satisfy legal accounts.

As the arrangement did not reduce or forgive the respondent’s fees and did not exist when the costs order was made, the applicant failed to demonstrate that the original order would have been different or that a miscarriage of justice would occur.

The applicant mother brought a motion for exclusive possession of the matrimonial home.

The parties continued to reside together with their two children in a highly tense and hostile environment following their separation.

The court considered a psychotherapist's report indicating that the 16-year-old daughter was suffering from anxiety and depression due to the respondent father's behavior, which the court found amounted to psychological assault.

Applying section 24 of the Family Law Act, the court determined it was in the best interests of the children to grant the applicant interim temporary exclusive possession of the matrimonial home.

In a family law proceeding involving divorce, property division, and spousal support, the parties brought a consent “basket” motion seeking an order permitting questioning and the bringing of motions following a case conference.

The court considered the interaction between Rules 13, 14, and 20 of the Family Law Rules.

It held that Rule 13(13) independently authorizes questioning on financial statements once the required request for additional information has been made, without requiring a separate court order under Rule 20(5).

The court further clarified that Rule 14(4) only prohibits motions before completion of a case conference; once the conference is completed, no additional order is required to bring motions.

The requested consent order was refused as unnecessary.