Elli M. Cohen

The court considered a motion regarding the sale of a jointly owned home and interim spousal support following the breakdown of a 26-year common-law relationship between two retired medical doctors.

The applicant sought the sale of the home and spousal support; the respondent sought a resulting trust and a vesting order.

The court found the property was intended to be held jointly, dismissed the resulting trust claim, ordered the property to be listed for sale, and awarded interim spousal support to the applicant.

The court issued a costs endorsement following two motions where success was roughly evenly divided between the applicant mother and the respondent father.

The mother succeeded on joint decision-making responsibility with final say and child support for her older son, but not on primary residence for the child T. The father succeeded on an equal shared parenting regime but not on sole decision-making.

Neither party acted in bad faith.

Despite the mother's more reasonable offers to settle, they did not warrant special costs consequences.

The court ordered each party to bear their own costs, finding this to be the most fair, just, and reasonable decision given the balanced outcomes and the objective of encouraging settlement.

The court also addressed two remaining issues: child support for T. (including section 7 expenses) and holiday parenting time, remaining seized of these matters.

This endorsement addresses cross-motions concerning parenting arrangements and child support.

The applicant mother sought joint decision-making with final authority, primary residency for the child T., specific parenting time, and child support for T. and her older son C. The respondent father sought sole decision-making or joint, a parenting coordinator, equal shared parenting, and a prohibition on the child's relocation.

The court granted the mother final decision-making authority (shared with tie-breaker), ordered equal shared parenting for T. (week on/week off), denied the parenting coordinator, and granted child support for C., finding the father stood in the place of a parent.

The father's request to prohibit relocation was denied as no such plan existed.

The moving party brought a motion for summary judgment to enforce a separation agreement reached via email correspondence.

The responding party argued that the moving party had repudiated the agreement by changing counsel and failing to sign a formal settlement agreement before the offer's expiry.

The court found no evidence of repudiation, noting that the moving party's retention of new counsel to review the agreement did not constitute resiling from it.

The court concluded that a binding agreement had been reached and granted the motion, awarding substantial indemnity costs to the moving party.

The applicant sought interim child support for her son from a previous relationship, interim spousal support, and orders regarding access exchanges.

The court found a prima facie case that the respondent stood in the place of a parent to the stepson and ordered him to pay full Guidelines child support for all three children.

The court also found the applicant entitled to interim spousal support based on need and compensatory grounds.

Due to conflict involving the respondent's mother, access exchanges were ordered to occur at a neutral location, with adjusted times for winter driving conditions.

The appellant appealed a motion judge's order requiring him to pay $1,200 per month in spousal support following his retirement.

He argued the motion judge erred by providing insufficient reasons, miscalculating incomes, allowing 'double dipping' from his previously equalized pension, and ordering support indefinitely.

The Divisional Court dismissed most grounds of appeal, finding the motion judge properly applied the exceptions to the rule against double dipping.

However, the court allowed the appeal in part to add a provision allowing either party to apply to vary the order when the respondent begins drawing her pension.

The applicant brought a motion to change a final order to include retroactive child support, arguing the respondent failed to disclose a $29,908 debt registered as a lien on the matrimonial home.

The original settlement had offset child support arrears against the applicant's equalization payment for the home.

The respondent failed to appear at the hearing.

The court found the undisclosed debt constituted a change in circumstances under the Divorce Act, as the applicant would not have agreed to the offset had she known of the lien.

The court varied the order, requiring the respondent to pay $34,454 in child support arrears and $15,000 in costs, and dismissed the respondent's cross-motion.

The respondent brought a motion to change his spousal support obligation due to job loss and financial difficulties.

The applicant brought a cross-motion seeking to stay the respondent's motion until he complied with a prior final order regarding spousal support arrears and joint lines of credit.

The court dismissed the applicant's motion to stay, finding the respondent's non-compliance was not deliberate or wilful, and directed the respondent's motion to change to proceed to trial, as oral evidence was necessary to determine if a material change in circumstances warranted variation.

The respondent brought a motion to change final orders concerning child support and Section 7 expenses.

The court determined that the respondent had overpaid child support due to changes in the children's living arrangements and post-secondary attendance, and that the applicant had underpaid child support for one child.

The court also adjudicated numerous Section 7 expense claims from both parties, disallowing claims incurred prior to a previous full and final settlement, and clarifying which expenses qualified as special or extraordinary under the Federal Child Support Guidelines, emphasizing the need for proper documentation and adherence to prior orders regarding child contributions.

The respondent, Karen Wharry, brought a motion under Family Law Rule 25(19) to change a final order regarding an equalization payment, alleging a mathematical miscalculation.

The applicant, John Wharry, opposed, arguing the court was functus officio as the order had been issued and entered, and previously appealed.

The court found it was functus officio, as the requested change was a conceptual legal error, not a clerical or mathematical mistake falling within the narrow exceptions to the functus officio principle or the scope of Rule 25(19).

The motion was dismissed for lack of jurisdiction.

The appellant appealed a trial judgment concerning spousal support, child support, and equalization of net family property.

The appellant achieved partial success on appeal by increasing spousal and child support and eliminating a termination date for spousal support imposed by the trial judge.

However, the appellant was unsuccessful in overturning the trial judge's conclusions regarding equalization of net family property, which was a matter of substantial financial significance.

The Court of Appeal varied the trial judge's costs award from $10,000 to $7,000 in favour of the respondent and ordered each party to bear their own costs of the appeal.

The appellant appealed a trial judgment in matrimonial proceedings, challenging the trial judge's findings on unjust enrichment, the exclusion of a farm as a gift, retroactive child support, spousal support duration, and post-separation obligations.

The Court of Appeal upheld the trial judge's findings that the farm was a gift and that unjust enrichment was limited to the bungalow.

However, the Court found the trial judge erred by imposing a strict three-year limit on retroactive child support under D.B.S., extending it back to the date of formal notice.

The Court also found the trial judge erred by arbitrarily terminating spousal support after five years, removing the termination date and increasing the quantum in accordance with the Spousal Support Advisory Guidelines.

The applicant mother brought a motion to stay a temporary order granting the respondent father supervised access to their two children, pending her motion for leave to appeal.

The mother objected to the paternal grandmother acting as the access supervisor.

The court dismissed the motion, finding that the mother failed to establish irreparable harm to the children or that the balance of convenience favoured a stay.

The court also found that fresh evidence regarding transitional difficulties during access did not justify staying or varying the order.

The appellant father sought to relocate with his seven-year-old child from Kincardine to Whitby, relying on a notice provision in a consent order.

The motion judge held that a motion to change was required and dismissed the motion, finding no material change in circumstances.

The Court of Appeal upheld the decision, agreeing that the proposed move contradicted the schooling and access clauses of the order, necessitating a motion to change.

The court also found no error in the motion judge's conclusion that the father's concerns about the stigma of past false abuse allegations were foreseeable at the time of the original order.

The appeal and leave to appeal costs were dismissed.

The applicant mother brought a motion seeking interim sole custody of the parties’ three-year-old child, along with structured access to the respondent father and child support.

The respondent brought a cross-motion seeking shared custody and continuation of a week‑about parenting arrangement that had been implemented after separation.

Applying the best interests test under the Children’s Law Reform Act, the court found persuasive evidence that the child was struggling emotionally with the weekly residential rotation and that the arrangement was not appropriate given the child’s young age and circumstances.

The court held that the status quo principle did not prevent change where credible evidence demonstrated harm or instability.

Interim sole custody was granted to the mother with liberal access to the father and involvement of the Office of the Children’s Lawyer.

Following a highly acrimonious 23-year marriage and subsequent litigation, the parties reached a settlement on the eve of trial but reserved the issue of costs for the court.

The respondent sought nearly $100,000 in full reimbursement, while the applicant primarily argued each party should bear their own costs.

The court declined to award costs to either party, finding that attempting to apply cost recovery rules after a substantive settlement is fundamentally misconceived and inappropriate, as it lacks objective benchmarks for assessing success and reasonableness.

In this family costs endorsement following dismissal of a motion for leave to appeal a temporary custody order, the court held that costs were governed by the Family Law Rules rather than Rule 57 of the Rules of Civil Procedure.

The successful responding party was presumptively entitled to costs, and substantial indemnity was rejected in favour of partial indemnity.

Applying the fairness and reasonableness principles governing costs, the court fixed all-inclusive costs at $5,000.

The request that costs be payable in the cause was denied because there was no legitimate reason to postpone payment.

The respondent mother sought leave to appeal a temporary custody order granting the father temporary custody and specified access.

The motion judge considered the test under r. 62.02(4) of the Rules of Civil Procedure requiring either a conflicting decision or good reason to doubt the correctness of the order coupled with issues of broader importance.

The court found no conflict with existing jurisprudence concerning maintaining the status quo in interim custody matters and concluded the motion judge properly applied the best interests of the child test under the Children’s Law Reform Act.

The court held the decision to alter the status quo was supported by compelling reasons related to the mother’s conduct in obtaining ex parte relief in another jurisdiction.

Leave to appeal was refused.

Following a lengthy family law trial in which the wife was largely successful, the court addressed remaining issues concerning security for various payments ordered against the husband.

The court confirmed its authority under s. 34(1)(k) of the Family Law Act to secure child and spousal support, as well as prejudgment interest related to the equalization payment, by way of a charge on the husband's property.

However, it declined to secure payment of land rent and the prejudgment interest associated with that rent, finding that ss. 10 and 12 of the Family Law Act did not apply to those obligations.

The court also refused to secure costs through the property charge, concluding that the relevant rule applies only where a costs order remains unpaid after default.

The moving party sought leave to appeal a costs order issued following settlement of family law proceedings involving custody, access, support, and property issues.

The trial judge had awarded costs to the other party after concluding that although success was divided, that party prevailed on the most complex and time‑consuming issues, particularly child and spousal support requiring extensive financial disclosure and expert accounting evidence.

The moving party argued the trial judge erred in fact‑finding, improperly awarded substantial indemnity costs, and created a reasonable apprehension of bias by releasing the decision before reply submissions were filed.

The court held that leave to appeal costs orders is granted only in obvious cases of error in principle or plainly wrong outcomes and found that the trial judge properly exercised discretion.

The motion for leave to appeal was dismissed.