Elli M. Cohen

The applicant moved for summary judgment under Rule 16 of the Family Law Rules to enforce a handwritten settlement agreement signed by the parties.

The respondent opposed the motion and sought to set aside the agreement under s. 56(4) of the Family Law Act, arguing that his severe medical conditions and medications impaired his capacity to understand the agreement.

The court dismissed the applicant's motion for summary judgment, finding that a genuine issue requiring a trial existed.

The court held that the expanded fact-finding powers available under Rule 20 of the Rules of Civil Procedure do not apply to Rule 16 of the Family Law Rules, and even if they did, the conflicting evidence regarding the respondent's capacity required a full trial to achieve a full appreciation of the issues.

A costs ruling in a custody and access dispute that was settled by Minutes of Settlement on February 9, 2012.

The applicant sought custody of the couple's nine-year-old son but abandoned his claim for outright custody during the litigation, eventually settling with only a marginal increase in summer vacation access.

The respondent was successful in defending the existing custody arrangement and was entitled to costs on a partial indemnity basis.

The applicant father brought a motion seeking leave to continue an action under the Children's Law Reform Act for custody or joint custody of two young children, notwithstanding an automatic stay triggered by the respondent mother's commencement of a divorce action in Superior Court.

The mother had removed the children from Toronto to Goderich without notice and restricted the father's access.

The court dismissed the motion, finding that while the mother's conduct in bringing the divorce action in Goderich (rather than Toronto where the children ordinarily resided) constituted bad faith and tactical maneuvering, the efficiency and economy of consolidating all issues—including property matters requiring Superior Court jurisdiction—in a single forum outweighed the prejudice to the father and children from the delay.

The court noted that urgent motions could be brought in Superior Court within approximately two weeks.