Frances P. Kiteley

This motion to change sought to vary a 2011 order regarding child and spousal support and s. 7 university expenses.

The applicant, Mr. Cinar, claimed overpayments of child support due to the child's university attendance and sought reimbursement for his share of university expenses.

The court found that Mr. Cinar had overpaid child support by several amounts and that the respondent, Ms. Cinar, was obligated to pay $18,000 for her share of s. 7 university expenses.

The court did not order direct reimbursement for the overpaid child support but made findings of overpayment and Ms. Cinar's obligation.

The case highlighted the procedural complexities arising from fragmented family law jurisdiction.

The applicant sought interim orders under sections 12 and 40 of the Family Law Act to restrain the respondent from dissipating assets, alleging depletion of capital that would impair her equalization and retroactive support claims.

The respondent opposed, arguing the applicant failed to meet the burden of proof and the relief sought was excessive.

The court found that while reckless depletion was not proven, there was a real risk the applicant would be unable to collect on a significant judgment due to the respondent's financial arrangements and delays.

The court granted a more tailored interim order, preserving specific assets, requiring the registration of a certificate of pending litigation against a cottage, and mandating a $4 million bond or letter of credit, while allowing the respondent to conduct ordinary course business with reporting requirements.

The endorsement addresses the jurisdictional question of whether a Trial Management Conference (TMC) judge has the authority under the Family Law Rules to direct the sequence in which parties lead evidence at trial.

The Applicant argued for the Respondent to lead evidence first, while the Respondent contended the Applicant should lead in the ordinary course.

The court found that a TMC judge does possess such jurisdiction, citing Rules 1(7.2), 2, and 17(6) of the Family Law Rules, and the Supreme Court's direction in Hyrniak v. Mauldin to expand judges' roles in crafting trial procedures.

The court then requested further submissions on whether to exercise this jurisdiction in the present case.

The respondent requested that her counsel be permitted to participate in an upcoming motion to change hearing by video conference and that a bilingual judge preside.

The applicant objected to the video conference request.

The court granted the request for a bilingual judge pursuant to the Courts of Justice Act, as French was the respondent's first language.

However, the court dismissed the request for video conferencing, noting that the hearing was for a final order, the respondent's counsel accepted the retainer knowing the hearing was in Toronto, and the volume of materials would make remote participation challenging.

The applicant sought costs of $25,000 following a successful motion for temporary spousal and child support.

The respondent conceded the applicant's entitlement to costs but argued for a reduced amount of $18,386 due to duplication of counsel and divided success on other issues, such as the sale of properties.

The court agreed with the respondent's proposed reductions for duplication of work and noted the divided success.

The court ordered the respondent to pay costs of $19,199 to the applicant.

The moving party, the nephew of the respondent mother, brought a motion to be appointed as her litigation guardian and to set aside a default judgment granting a divorce and corollary relief to the applicant father.

The court found the mother was mentally incapable of representing herself due to schizophrenia and appointed the nephew as litigation guardian.

The court declined to set aside the divorce itself but set aside the corollary relief (custody, access, property) because the mother had a plausible explanation for her default, moved promptly once her nephew became involved, and had an arguable case on the merits.

The moving party (respondent in the main application) brought a motion to cancel a matrimonial designation on his property and to terminate temporary spousal support, after the responding party's pleadings on financial issues were struck.

The court granted the cancellation of the matrimonial designation.

The court declined to terminate spousal support entirely but varied the temporary order, reducing it from $4,000 to $1,800 per month, noting the short cohabitation, the responding party's lack of effort to become self-sufficient, and the moving party's significant prior payments.

The moving party (former husband) brought a motion to change a final consent order to terminate spousal support and reduce child support.

The moving party had suffered a heart attack, was no longer employed, and was receiving long-term disability benefits, reducing his income to approximately $25,000 per year.

The responding party (former wife) opposed the motion.

The court found a material change in circumstances and ordered that spousal support be terminated and child support be reduced to $200 per month, both effective April 1, 2016.

The parties settled a motion for contempt and a cross-motion, leaving the issue of costs to be determined by the court.

Both parties sought costs of approximately $40,000.

The court found that the respondent's original motion was necessary to enforce compliance with a final order regarding travel consent and life insurance, whereas the applicant's cross-motion was unnecessary.

The court awarded costs to the respondent, noting the applicant's unreasonable behaviour, including advancing a significant bill of costs for services rendered by his fiancée, who was not his solicitor of record.

The applicant was ordered to pay $27,454 in costs.

In an ongoing family law arbitration regarding property valuation, the moving party husband sought to introduce 2015 year-end financial statements.

The arbitrator adjourned the hearing to allow the parties to seek direction from the Superior Court on the admissibility of the documents under section 6.1 of the Arbitration Act.

The court reluctantly accepted jurisdiction due to the parties' consent and the unique circumstances.

The court dismissed the motion, finding the documents were inadmissible hearsay as the author was not being called as a witness and the arbitration agreement limited witnesses to the parties' experts.

Following a successful motion regarding school registration for the parties' child, the applicant sought costs of $5,032.

The respondent argued for a reduced amount of $500 due to her financial circumstances, noting she was on social assistance.

The court found the applicant was entitled to costs and had made a reasonable offer to settle that justified an increased recovery.

While acknowledging the respondent's limited means, the court held that litigants of modest means must still act reasonably and consider offers to settle.

The court awarded costs of $4,000 to the applicant, payable at $50 per month.

The moving party brought a motion for a refraining order against the Director of the Family Responsibility Office to prevent the suspension of his driver's license due to $3,000 in support arrears.

The moving party had unilaterally deducted $3,000 from his support payment, claiming a set-off for indirect payments made.

The court found that while the moving party made out a prima facie case for variation, he did not come to court with 'clean hands' because he took matters into his own hands by creating his own set-off against periodic support rather than waiting for the court to resolve the issue.

The motion for a refraining order was dismissed, and the moving party was ordered to pay costs to his former spouse, who had to respond to an improperly included claim for suspension of enforcement.

The respondent brought a motion to sever the divorce from corollary relief.

The applicant opposed the motion on the basis that the respondent had failed to provide adequate financial disclosure and that reasonable arrangements for child support had not been made.

The court dismissed the motion, finding that under s. 11(1)(b) of the Divorce Act, it had a duty to satisfy itself that reasonable arrangements for child support were in place before granting a divorce, which could not be determined due to the respondent's lack of disclosure.

The applicant was successful in dismissing the respondent's summary judgment motion in a family law proceeding and sought costs of approximately $207,000.

The respondent argued the costs were excessive and proposed $31,000 plus HST, citing the applicant's alleged unreasonable behaviour and delay.

The court found neither party acted unreasonably and determined that partial recovery was appropriate.

After deducting fees for services rendered prior to the motion, the court awarded the applicant costs fixed at $124,186 inclusive of disbursements and HST.

In this case management endorsement, the court addressed the timetabling of several outstanding motions in a family law proceeding.

Both parties sought to bring motions to vary a temporary support order.

The court declined to permit these motions to proceed, noting that temporary orders are not meant to be changed pending trial and that the respondent had failed to provide a complete financial statement.

The court scheduled the respondent's motion for production of a lawyer's file and the applicant's motion for interim disbursements, and set dates for a settlement conference and trial.

The applicant brought an urgent motion for temporary exclusive possession of the matrimonial home following a dispute, after which she left the home with the children.

The respondent brought a cross-motion for exclusive possession or, alternatively, a nesting arrangement.

The court found that the children were not at risk of harm and that both parents were involved caregivers.

The court dismissed both motions for exclusive possession and ordered a temporary nesting arrangement where the parents would rotate occupying the home with the children.

At a Trial Management Conference for a family law dispute involving custody and mobility issues, the court reviewed the parties' extensive witness lists which estimated 24 to 25 days of trial time.

The court had previously set a tentative 15-day trial date.

To ensure the trial proceeds efficiently and maximizes judicial resources, the court exercised its discretion under the Family Law Rules to impose strict time limits, allocating 37.5 hours per party, and ordered counsel to reduce oral evidence.

The trial date remained tentative pending a supplementary TMC.

During an ongoing family law trial, the moving party brought a motion seeking payment of certain amounts from funds held in trust pursuant to earlier preservation orders.

The court considered whether the preservation order was made under s. 12 of the Family Law Act or was in the nature of a Mareva injunction.

Concluding that the order was properly characterized as a preservation order under s. 12 of the Family Law Act, the court determined that continuing to freeze all funds was no longer necessary to protect the responding party’s potential equalization claim.

The court ordered that $60,000 be released to the moving party from trust funds and directed payment of $750 to satisfy a Court of Appeal costs order.

Issues relating to credibility and other factual disputes were left for determination at trial.

The applicant brought a motion to validate service of family law proceedings on the respondent, who resides in China.

The court considered whether the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents applies to Ontario family law proceedings.

The court held that the Family Law Rules adequately cover service and that Rule 17.05 of the Rules of Civil Procedure, which mandates compliance with the Hague Convention, does not apply.

In the alternative, the court found that the respondent's financial abandonment of his family and his use of the Convention to evade service constituted extreme circumstances justifying an exception to the Convention.

Service was validated.

The respondent in a family law proceeding brought a motion to adjourn the trial scheduled for January 2016 to April or May 2016.

The moving party argued that an adjournment was necessary due to outstanding expert reports, incomplete questioning, and a pending section 30 assessment report.

The responding party opposed the motion, citing prejudice and the moving party's failure to comply with previous timetables.

The court dismissed the motion, finding that the moving party had twice consented to trial dates and failed to comply with the associated timetables, and that further delay would prejudice the responding party and the parties' child.