Fay A. McFarlane

The applicant sought to set aside an interlocutory order granting a Certificate of Pending Litigation and an interlocutory injunction issued by Justice Vallee on August 6, 2025.

The respondent had commenced a new action seeking to declare the applicant's mortgage void and unenforceable, following the applicant's successful summary judgment motion for possession of mortgaged property.

The respondent failed to disclose prior judicial decisions dismissing similar motions and denying stays of the summary judgment.

The court found that the respondent's failure to make full and fair disclosure as required by Rule 39.01(6) was sufficient grounds to set aside the order.

The court also found that the new action constituted an abuse of process and an impermissible collateral attack on the prior summary judgment decision.

The applicants, beneficiaries of "lost shareholders" of York Downs Golf and Country Club, sought orders to be registered as shareholders and receive distributions after their shares were cancelled under a court-approved plan of arrangement.

They argued the arrangement was unfair/unreasonable under s. 182 OBCA or oppressive under s. 248 OBCA, as they had insufficient time to validate their claims after being located late in the process.

The court dismissed the applications, holding that the prior court approval of the arrangement as fair and reasonable was res judicata and that the arrangement appropriately balanced stakeholder interests.

The court also found no oppression, as the applicants had no reasonable expectation beyond complying with the arrangement's terms, and York Downs had made commercially reasonable efforts to locate shareholders and facilitate claims.

This decision addresses a costs motion following a 34-day family law trial.

The applicant, Mr. Southorn, sought costs arguing he was the more successful party, while the respondent, Ms. Ree, also sought costs.

The court found Mr. Southorn significantly more successful on the key issues of decision-making responsibility, parenting time, and support.

Both parties were found to have behaved unreasonably and exhibited some bad faith regarding testimony and financial disclosure.

Mr. Southorn's offer to settle was deemed reasonable, while Ms. Ree's was unreasonable and vague.

The court awarded Mr. Southorn $97,500 in all-inclusive costs, with specific allocations for parenting and support issues, and provisions for collection via a support deduction order and a charge on the respondent's property.

The applicant sought an interim order for shared custody or increased parenting time based on an Office of the Children's Lawyer (OCL) report.

The respondent opposed, disputing the OCL report's conclusions and methodology.

The court dismissed the applicant's motion, finding no compelling circumstances to change the established status quo, especially with a trial imminent.

The court also expressed concerns about the OCL investigator's methodology, including reliance on unqualified opinions and a presumptive approach to shared custody, and the high conflict between the parents.

The maternal grandmother moved to be added as a party to a child protection proceeding involving her 20-month-old granddaughter.

The child's parents supported the grandmother's plan of care but were not in a position to care for the child themselves.

The Society opposed the motion, arguing it would cause delay and was unnecessary since the parents could advocate for the grandmother's plan.

The court granted the motion, finding that the grandmother had a legal interest in the case under the Child and Family Services Act and that her independent advocacy was in the child's best interests.

Following an earlier costs endorsement, the respondents objected to the applicant’s reply submissions, arguing they exceeded the page limit set by the court and should be ruled inadmissible.

The court determined that the reply submissions were proper reply and therefore admissible, but accepted that the applicant’s non‑compliance with the page limit affected the costs incurred.

As a result, the court reduced the costs attributable to the reply submissions.

The court varied the earlier costs endorsement and ordered the respondents to pay a reduced amount in costs to the applicant.

The applicant father brought a motion seeking retroactive and ongoing child support under s. 9 of the Federal Child Support Guidelines in a shared custody arrangement.

The respondent mother argued that the applicant was intentionally underemployed and that income should be imputed to him at a higher level.

Applying the test from AMD v. AJP, the court found the applicant was intentionally underemployed and imputed income of $75,000 to him.

However, given factual disputes regarding standards of living and the imminent trial process, the court declined to make interim or retroactive child support orders.

The issues were held to be more appropriately determined at trial.

Following a successful condominium compliance application requiring the removal of a dog exceeding the condominium corporation’s weight restriction, the court determined the appropriate costs award.

The respondents had argued the dog was required as a therapy animal and alleged discrimination under the Human Rights Code, but failed to establish a prima facie case.

Applying s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court emphasized fairness and reasonableness in fixing costs.

The court held that full indemnity costs are generally appropriate in condominium compliance proceedings to avoid shifting enforcement costs onto innocent unit owners.

The respondents were ordered to pay $47,000 in costs jointly and severally, recoverable as common expenses and enforceable as a lien against the condominium unit if unpaid.

The applicant condominium corporation sought an order requiring the respondents to permanently remove a dog weighing over 25 pounds from their unit, in compliance with the condominium's rules.

The respondents argued the dog was a service/therapy dog required for the respondent's mental disability and sought accommodation under the Human Rights Code.

The court found the respondents failed to establish a disability within the meaning of the Code, as the medical evidence only cited stress and lacked a specific diagnosis.

The court ordered the removal of the dog and declared the applicant had not discriminated against the respondents.

Following a family law motion concerning the matrimonial home, child support, and a parenting coordination agreement, the court addressed costs.

The respondent on the motion argued he was the successful party and sought full indemnity costs based on an offer to settle and alleged bad faith by the other party.

The court found that neither party’s offer complied with the strict requirements of Rule 18(14) of the Family Law Rules and therefore full indemnity costs were not mandatory.

However, the court determined the respondent was largely successful on the dominant issue and that the applicant had engaged in unreasonable conduct by listing and negotiating the sale of the matrimonial home without meaningful involvement from the other party.

Considering hardship but maintaining the principle that costs follow the event, the court awarded partial indemnity costs.

In a family law motion arising from minutes of settlement concerning custody and access, the applicant sought an order compelling the respondent to sign a parenting coordination agreement with a named parenting coordinator.

The court found the evidentiary record deficient because the proposed agreement was not filed and there was insufficient evidence that the respondent was in default of any obligation to execute it.

The court also held that an earlier order already implicitly required the parties to complete the documentation necessary to retain the parenting coordinator.

Rather than duplicating the order, enforcement remedies under Rule 1(8) of the Family Law Rules were available if non-compliance occurred.

The motion was therefore dismissed.

On an interim family law motion, the applicant sought exclusive possession of the matrimonial home, interim spousal support, and an advance for expert valuation expenses relating to equalization.

The parties continued living in the matrimonial home in intolerable circumstances after separation, while the respondent possessed significantly greater financial resources and alternative accommodation.

The court granted the applicant exclusive possession, finding it reasonable that the respondent vacate given the applicant’s limited means and the presence of extended family members in the home.

Due to incomplete financial disclosure and evidence of substantial assets, the court imputed income of $100,000 to the respondent and ordered interim spousal support of $2,000 per month.

The court also ordered the respondent to advance $60,500 on equalization to permit the applicant to retain experts and ensure trial fairness.