Edward Kiernan

Following a family trial concerning child support and special or extraordinary expenses, the court determined costs under rr. 18 and 24 of the Family Law Rules.

Although success was divided, the applicant was more successful overall because she prevailed on special expenses, arrears-related issues, and the life insurance issue, while the respondent achieved only tempered success on retroactive child support adjustments.

The court reduced the applicant's entitlement to reflect the respondent's partial success and further reduced it because the applicant failed to make any offer to settle.

The court fixed costs at an objectively reasonable, fair, and proportionate amount of $5,560, enforceable through the Director of the Family Responsibility Office.

This motion to change a divorce order addressed child support and special expenses.

The respondent (payor) sought a retroactive reduction in child support due to decreased income and a change in special expense contributions.

The applicant (recipient) sought a retroactive increase in child support and contributions to various special expenses.

The court found a material change in circumstances for child support, imputing income to the payor for one year of underemployment, and retroactively adjusted support from January 1, 2019.

The payor's request to change life insurance was dismissed.

For special expenses, the court largely upheld the original order's requirement for consultation and agreement, finding the payor liable for childcare and school uniforms where consultation occurred or was unreasonably withheld, but denying other claims where the recipient failed to consult.

This high-conflict family law case involved two motions concerning the parenting arrangements for a child.

The respondent father sought a temporary order for primary residence due to alleged parental alienation by the applicant mother.

The applicant mother sought dismissal of the father's motion and an updated Office of the Children's Lawyer (OCL) report.

A critical material change in circumstances arose: the mother was in a relationship with a man recently convicted of child pornography possession and subject to a s.161 Criminal Code prohibition order.

The court found this constituted a compelling and exceptional material change, creating actual or potential harm to the child.

Consequently, the court granted the father's motion for temporary primary residence and sole decision-making responsibility, while allowing the mother unsupervised parenting time under strict conditions, including the prohibition of the convicted individual's presence during her parenting time.

The OCL was also requested to engage further services.

The Society sought an order for extended society care with no access for two young children.

The mother sought the return of the children to her care subject to supervision.

The court found the children in need of protection due to historical housing instability and conflict, but noted the mother had made significant progress, secured stable housing, and improved her parenting skills.

The court heavily criticized the Society for failing to expand the mother's access and for unreasonably opposing a temporary court order for overnight visits.

Concluding that the protection concerns could be mitigated by terms of supervision, the court dismissed the Society's application for extended care and ordered the children returned to the mother under a 9-month supervision order.

The Children's Aid Society brought a protection application regarding two children.

The older child disclosed sexual abuse by the mother's new partner, and the mother failed to protect the child, eventually resuming her relationship with the abuser.

The children were placed in the temporary care of their paternal grandparents.

At trial, the court found the children in need of protection.

The father sought custody but had moved to a new city with a partner who had seven children recovering from severe trauma, and the older child refused contact with him.

The court granted a final custody order to the paternal grandparents under section 102 of the Child, Youth and Family Services Act, finding it in the children's best interests, and ordered a structured access schedule for the parents.

The Children's Aid Society brought a protection application regarding a six-year-old Indigenous child due to the mother's severe and ongoing alcohol abuse.

The child had been residing with the maternal grandmother under a voluntary safety plan.

The Society and the father sought to have the child placed in the father's care, while the mother sought to have the child remain with the maternal grandmother under a supervision order.

The court found the child in need of protection and determined that the mother had 'charge' of the child prior to intervention.

However, returning the child to the mother was unsafe.

The court concluded it was in the child's best interests to be placed in the custody of the father, who offered long-term stability and supported the child's Indigenous heritage.

A final custody order was granted to the father, with supervised parenting time for the mother and contact time for the maternal grandmother.

The appellant grandparent appealed a motion judge's decision dismissing his motion to be added as a party to child protection proceedings concerning his grandchild.

The appellant argued the motion judge failed to apply the five-part test for adding parties and failed to give reasons for denying alternative relief for participant status.

The Divisional Court dismissed the appeal, finding the motion judge substantively considered the relevant factors and correctly concluded that adding the appellant was not in the child's best interests, as it would unduly prolong proceedings and the appellant lacked a viable competing plan.

The court also held that the appellant did not meet the statutory precondition of providing continuous care for six months to qualify for participant status.

The respondent mother brought a motion to change a final order to allow her to relocate with the children to the Niagara region to attend college.

The applicant father opposed the move and brought a cross-motion for sole custody and primary residency.

The court found a material change in circumstances regarding the mother's employment and financial situation, and held that the move was in the children's best interests.

The mother's motion to relocate was granted, the father's cross-motion for custody was dismissed, and the father's access schedule was varied to provide him with additional time to accommodate the move.

Following the settlement of a child protection proceeding, the respondent mother sought costs of $352,066.02 from the respondent father.

The mother argued the father acted unreasonably, necessitating an urgent motion mid-trial to enforce a parenting order after he failed to return the children.

The court noted that while costs are rarely awarded between parents in child protection matters, the father's breach of the court order justified a costs award for the urgent motion.

The court awarded the mother $15,000 in costs for the motion but declined to award costs for the entire proceeding, as the trial was not completed and there was insufficient evidence of bad faith to justify full costs.

This decision addresses costs following an eight-day trial in a family law matter.

The court found divided success, noting that neither party's pre-trial offers to settle fully aligned with the final judgment.

The applicant was largely unsuccessful on the matrimonial home valuation date, while the respondent conceded the separation date late and failed to pay spousal support.

Both parties were found to have behaved unreasonably on certain issues, contributing to the necessity of a trial.

Considering the mixed outcomes and the conduct of the parties, the court ordered that each party bear their own costs.

The court determined costs following two motions regarding custody and access.

Although the applicant succeeded in setting aside a previous temporary order, he did not succeed in his main goal of returning to 50/50 residence, and the respondent was overall successful.

The court awarded the respondent costs of $2,500 plus HST, finding the amount very reasonable compared to her actual legal fees.

The parties separated after a 21-year marriage.

The primary issue was the equalization of the matrimonial home, which the respondent had inherited from her grandparents.

The applicant claimed a 50% ownership interest based on an alleged agreement and unjust enrichment, and sought an unequal division of net family property under s. 5(6) of the Family Law Act due to significant post-separation increases in the property's value.

The court found the respondent was the sole owner but the applicant was entitled to an equalization payment based on the valuation date value.

The court declined to apply s. 5(6), finding the threshold of unconscionability was not met.

The court also awarded the applicant occupation rent for a mobile home on the property, retroactive spousal support, and ordered him to pay child support for one child.

The applicant father brought a motion to set aside a temporary order that granted sole custody of the parties' child to the respondent mother, seeking to reinstate a prior shared parenting arrangement.

The respondent mother brought a cross-motion for a permanent order of sole custody.

Due to high conflict between the parents, the court interviewed the 12-year-old child, who expressed a preference to live with his mother and have discretionary weekend visits with his father.

Finding that joint custody was inappropriate given the parents' inability to communicate, the court dismissed the father's motion and granted sole custody to the mother, with specified parenting time for the father in accordance with the child's wishes.

In a historical sexual abuse prosecution involving multiple child complainants and a similar fact witness, the court considered allegations of gross indecency, indecent assault, and intercourse said to have occurred between 1969 and 1976.

The trial judge found significant credibility concerns in one complainant's evidence when viewed in isolation, but accepted the independent evidence of the other complainants and the similar fact witness and relied on the marked similarities among the allegations to reject coincidence and the accused's blanket denial.

Applying the W.D. framework and the law governing similar fact evidence, the court convicted on counts of gross indecency and indecent assault but was not satisfied beyond a reasonable doubt that intercourse had been proven on one count.

A publication ban under s. 486.4 applied.

The Children's Aid Society sought a finding that the child was in need of protection and an order for sole custody to the mother with supervised access to the father.

The court found the child in need of protection under section 74(2)(b)(i) and (ii) of the Child, Youth, and Family Services Act due to risks of physical harm arising from the paternal grandparents' long-term opioid addiction and recent cocaine use, the paternal uncle's drug issues, and the father's lack of insight into these risks and his own anger management difficulties.

The court granted sole custody to the mother and ordered weekly supervised access for the father at a third-party facility, emphasizing that unsupervised access would only be considered if the father addressed his living situation and anger management issues.

The initial finding that the child was also in need of protection under section 74(2)(h) was later corrected and removed.

The Children's Aid Society brought a motion for summary judgment seeking a finding that three children were in need of protection and an order placing them in extended society care.

The parents opposed the motion, arguing there were genuine issues for trial.

The court found no genuine issue for trial regarding the protection finding, as the evidence of the parents' substance abuse, inadequate supervision, and the children's needs clearly established they were in need of protection.

However, the court found a genuine issue for trial regarding disposition, as the mother had obtained housing, completed rehabilitation, and proposed a plan of care that could not be summarily dismissed.

The matter was remitted for trial on disposition.

The court addressed the calculation of spousal support following the respondent's sale of a farm property, which resulted in a significant, non-recurring capital gain.

The central issue was whether and to what extent this capital gain should be included in the respondent's income for spousal support purposes, particularly after the cessation of previously imputed farming income.

The court considered the Child Support Guidelines' provisions for non-recurring amounts and the need for fairness in light of both parties' circumstances.

The appellant mother appealed a trial decision making two of her children Crown wards without access and granting custody of her third child, who has Down syndrome, to the biological father without access to the mother.

The mother argued the trial judge erred in assessing evidence, including child hearsay and medical evidence, and in denying her access.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding errors in the trial judge's assessment of the evidence, credibility findings, or determination that access was not in the children's best interests given the mother's history of physical discipline, lack of insight, and failure to address the children's needs.

This is a child protection trial under Part III of the Child and Family Services Act involving three children.

The Children's Aid Society sought findings of protection and Crown Wardship for all three children.

The court found that the mother inflicted physical harm on the children through hitting them with a stick and other harsh discipline, causing complex trauma and emotional harm.

The court made findings of protection for all three children.

For the two older children, the court ordered Crown Wardship with no access to the mother.

For the youngest child, the court placed him in the custody of his father with no access to the mother, finding that the father was providing appropriate care and that the child was thriving in his care.

A mid-trial motion by the respondent mother to amend her pleadings to include a claim for placement of the subject child with the maternal great aunt was denied.

The child had been in the care of the Children's Aid Society since 2013 following removal due to domestic violence and substance abuse concerns.

The mother had not previously advanced the kinship care plan despite multiple opportunities to do so, including at trial management conference and when filing amended pleadings.

The court found that granting the amendment would require a substantial adjournment, necessitate reopening the Society's case, and result in significant delay prejudicial to the child's need for permanency.

The court emphasized the importance of procedural efficiency and the child's best interests in child protection proceedings.