Eric Sadvari

This decision resolves a long motion in a family law dispute between Morgan MacDougall-Milne and Leigh Alexander Smith.

The respondent father sought medical disclosure and a parenting assessment of the applicant mother, alleging she suffered from dementia.

The court found no evidence supporting the claim of dementia and declined to order medical disclosure or a section 30 assessment.

The court granted the applicant’s requests to dispense with the respondent’s consent for their daughter’s passport, travel to Las Vegas, and enrollment in French Immersion, and ordered the release of certain records based on prior undertakings.

Full indemnity costs were awarded to the applicant.

This decision addresses the costs of a motion brought by the applicant to appoint an investigative receiver-monitor and for interim disbursements in a complex corporate/family dispute.

Although most issues were settled just before the scheduled hearing, the court found compelling reasons to award costs to the applicant due to the respondents' litigation conduct, including failure to provide proper financial disclosure and late capitulation on key issues.

The applicant was deemed the successful party, having secured the appointment of their proposed receiver and interim disbursements of $1 million.

The court awarded $125,000 in costs to the applicant, balancing the applicant's success against the proportionality of the fees incurred, and declined to order joint and several liability as requested, preserving the issue for trial.

The Applicant mother sought prospective and retroactive child support for the parties' child and to terminate or vary a preservation order on the former matrimonial home.

The Respondent father opposed retroactive support prior to August 2023 and the termination of the preservation order.

The court ordered temporary retroactive child support from January 1, 2023, and varied the preservation order to allow it to be registered against another property owned by the Mother, rather than terminating it.

The issue of child support from separation to December 31, 2022, was reserved for trial.

The respondent husband brought a motion to vary interim child support and parenting orders due to alleged material changes in circumstances.

The court dismissed the motion to vary child support, finding no actual change in circumstances that would warrant revisiting the interim order before trial.

However, the court granted the motion to increase the father's parenting time and establish joint parental decision-making, emphasizing the best interests of the children and the material change in circumstances due to the withdrawal of criminal charges against the father and the passage of time.

The parties settled a motion to change regarding child support by way of a consent order, but left the issue of costs for the court to determine.

Both parties sought costs, arguing the other had acted unreasonably and claiming they were the successful party.

The court declined to award costs to either party, applying the general principle that costs are rarely awarded following a negotiated settlement because the court lacks the objective benchmarks necessary to assess relative success or reasonableness.

The applicant sought full indemnity costs of $35,747.55 following cross-motions regarding parenting arrangements, mobility, and daycare.

The applicant argued entitlement to enhanced costs because he served three offers to settle that were as favourable or less favourable than the final order, pursuant to Rule 18(14) of the Family Law Rules.

The respondent argued no costs should be ordered as she litigated in good faith.

The court found the applicant was entitled to full indemnity costs for the issues of parenting time and mobility from the date of his March 1, 2022 offers.

Considering proportionality and the reasonable expectations of the parties, the court fixed costs payable by the respondent to the applicant at $25,000.

The applicants, a same-sex couple, sought a declaration of parentage and primary residence of a child born to the respondents.

The parties had an informal agreement that the applicants would raise the child, but the respondents sought the child's return after four months.

The court found that the statutory requirements for a declaration of parentage under s. 13 of the Children's Law Reform Act were not met, as there was no pre-conception intent for all four parties to be parents.

However, applying the best interests of the child test, the court granted the applicants primary residence and sole decision-making responsibility, with gradually increasing parenting time for the respondents.

The appellant sought to appeal a lower court order that found material changes in circumstances, reduced support arrears, and terminated spousal and child support.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's decision regarding material change, imputation of income, termination of support, or costs.

The court emphasized the deference owed to family support decisions.

The respondent wife brought a motion for interim spousal support, both retroactive and prospective.

The parties separated 6.5 years prior, during which time the applicant husband paid all carrying costs for the matrimonial home where the respondent resided.

The court declined to determine retroactive support on an interim motion due to complexity.

For prospective interim spousal support, the court imputed a full-time minimum wage income to the respondent and ordered the applicant to continue paying the carrying costs of the home as the status quo until its sale, after which he must pay $4,840 per month in accordance with the Spousal Support Advisory Guidelines.

The mother appealed a decision dismissing the Children's Aid Society's motion for leave to withdraw its child protection application.

The Society had sought to withdraw the application as there were no ongoing protection concerns and all parties consented.

The motion judge dismissed the request, focusing on parallel domestic custody proceedings.

The Superior Court granted the appeal, finding the motion judge made palpable and overriding errors by failing to consider the uncontradicted evidence of no protection concerns, the consent of the parties, and the reasons for withdrawal.

The motion for leave to withdraw the protection application was granted.