Erika MacLeod

This decision addresses a father's motion for parenting time after allegations of sexual abuse by the mother led to a cessation of contact with their 2½-year-old child.

The court carefully analyzed the best interests of the child under section 24 of the Children’s Law Reform Act, considering the limited and unverified evidence of abuse, the history of the parental relationship, and the impact of family violence allegations by both parties.

The court found no concrete evidence supporting the sexual abuse allegations and emphasized the importance of supervised parenting time rather than a complete denial.

The decision orders supervised parenting time with a gradual increase to be managed by the Superior Court of Justice, highlighting the need for a balanced approach in high-conflict family law cases involving serious allegations.

The moving party sought leave to appeal the order of Lemon J., which incorporated the orders set out in the endorsement of Fowler Byrne J. The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 to the responding party.

The applicant father brought an urgent motion for access to his three children, which was opposed by the respondent mother who also sought supervised, graduated access and child support.

The court, acting as Triage Judge under COVID-19 protocols, determined that the matter was not urgent, citing the absence of a prior parenting order, lack of immediate safety or well-being concerns, the father's unreasonable request for immediate overnight access given serious abuse allegations, and his failure to propose a realistic parenting plan considering COVID-19 precautions.

The urgent motion was dismissed, and parties were encouraged to negotiate a safe, graduated parenting schedule, potentially involving virtual contact and third-party supervision for face-to-face contact.

The applicant wife brought an urgent motion prior to a case conference seeking a restraining order, exclusive possession of the matrimonial home, and its immediate partition and sale.

The respondent husband consented to exclusive possession but opposed the remaining relief.

The court found no urgency to justify hearing the motion for a restraining order before a case conference.

However, the court held that it was in the interests of justice to order the immediate partition and sale of the home, as the wife had a prima facie right to it, the husband had previously requested the same relief in his pleadings, and delaying the inevitable order would only increase costs and waste judicial resources.

This decision addresses the costs of previous motions concerning child access and financial disclosure.

The applicant, Mr. Leybourne, sought increased access to his daughter and financial disclosure, while the respondent, Ms. Powell, sought to restrict his access.

The court found Mr. Leybourne's offer to settle more favourable than the outcome and deemed Ms. Powell's conduct unreasonable for bringing an urgent motion and making unsubstantiated allegations.

Consequently, Mr. Leybourne was awarded costs on a full recovery basis.

The appellant appealed a motion judge's decision regarding the date of separation in a family law matter.

The motion judge had ruled that the parties did not reach a final settlement agreement on the date of separation and struck references to settlement communications on the ground that they were protected by settlement privilege and would be irrelevant at trial.

The Court of Appeal upheld the motion judge's decision, finding that once the motion judge determined there was no agreement, the settlement communications became privileged and could not be used at trial to establish a date of separation.

This ruling addresses costs arising from two motions brought by the applicant father: one to vary a temporary access order and another to strike the respondent mother's pleadings.

The motions resulted in divided success, with the father obtaining increased supervised access but not unsupervised access, and the mother's pleadings not being struck.

The court found that both parties had not acted with the requisite maturity and incurred unnecessary legal costs.

Consequently, the court declined to award costs to either party, citing Rule 24 of the Family Law Rules, to encourage future cooperation and discourage an inflexible approach to parenting.