Frances P. Kiteley

The respondent, Joanne Chuvalo, brought a motion under Family Law Rule 25(19)(b) to correct an order declaring George Chuvalo lacked capacity to reconcile, seeking to change its designation from "temporary" to "final." The court dismissed the motion, finding that the original order was correctly designated as "temporary" because capacity is fluid and the order did not finally dispose of all substantive issues in the ongoing divorce application.

The court clarified the distinction between temporary and final orders, applying the "classic test" that an order is interlocutory if the merits of the case remain to be determined.

The court also found no common intention between counsel to designate the order as "final," which is a requirement for correcting a mistake under Rule 25(19)(b).

Costs were awarded to the Public Guardian and Trustee.

The father appealed a summary judgment that dismissed his motion to change a final order regarding custody and access.

The motions judge found no genuine issue requiring a trial, concluding the father failed to demonstrate a material change in circumstances.

The appeal court upheld the motions judge's decision, finding no errors in law or palpable and overriding errors in fact, particularly regarding the father's progressive hearing loss and other alleged changes.

The appeal was dismissed, and the parties were directed to make written submissions on costs if they could not agree.

The Respondent brought a motion for a Voice of the Child Report for their two children (aged 8 and 6).

The Applicant opposed on procedural grounds (judge recusal due to prior settlement conference involvement, and motion not suitable for Form 14B) and substantive grounds (lack of jurisdiction without consent, children too young, report's limited utility).

The court dismissed the Applicant's objections, finding that "issue" in Rule 17(24) refers to substantive matters, not procedural ones, and that Rule 20.1(3) provides jurisdiction to order such reports without consent.

The court deemed the report appropriate given the children's ages and the lack of progress in negotiating parenting time changes.

The motion for the Voice of the Child Report was granted, with the Respondent to pay 100% of the fees, and no costs were awarded for the motion.

This endorsement addresses a request for costs "thrown away" due to the adjournment of a trial date.

The applicant had requested the adjournment, and the respondent sought costs.

The court found that the adjournment was caused by the applicant's failure to adhere to a consent timetable for pleadings.

While the delay was not wilful, the respondent was entitled to costs thrown away.

The court clarified what constitutes "costs thrown away" in this context, excluding work done prior to the specific adjournment for which costs were sought.

Costs were fixed at $1,000.00 on a partial indemnity basis.

The appellant appealed an arbitration award concerning spousal support, life insurance, and medical benefits.

The arbitrator had conducted a de novo review of the separation agreement's support provisions, leading to a step-down and eventual termination of spousal support.

The appellant argued the arbitrator erred in interpreting the scope of the review and in exercising discretion.

The court dismissed the appeal, finding the arbitrator correctly interpreted the separation agreement as allowing a de novo review and did not make palpable and overriding errors in her discretionary decisions regarding support and costs.

This endorsement addresses costs arising from a motion for temporary spousal support where the Applicant was largely successful.

The Applicant sought costs on a substantial indemnity basis, while the Respondent sought full recovery costs, arguing the Applicant's unreasonable conduct in bringing the motion on short notice should disentitle her to costs.

The court found the Applicant's conduct unreasonable, partly due to her fragile medical condition, but also noted the Respondent's prior failure to provide financial disclosure.

The court determined that the Applicant's unreasonable conduct warranted a reduction in her costs award, but not a denial, and dismissed the Respondent's claim for costs, finding that many of his incurred costs related to overdue financial disclosure.

The Applicant was awarded approximately 50% of her substantial indemnity costs.

The applicant sought a provisional order to adjust child support and calculate arrears retroactive to 2012, citing the respondent's failure to provide financial disclosure as required by a 2011 divorce order.

The respondent eventually provided disclosure, leading to an agreed calculation of significant arrears.

The court confirmed the arrears, denied the respondent's claims for credits for parenting time and expenses, and denied the applicant's request for Section 7 expenses due to a prior agreement.

The court ordered the respondent to continue paying an amount higher than the current guideline amount for the remaining child, with the excess applied to the arrears, and awarded costs to the applicant.

The applicant sought an annulment of a purported marriage, alleging duress and non-compliance with formal and essential validity requirements.

The respondent was served but did not file an answer.

The court found that the ceremony failed to meet formal validity requirements, as the parties were not in the presence of each other, the officiant, and witnesses, and mandatory declarations were not made.

Furthermore, the applicant did not freely consent to the marriage, having been subjected to cultural and familial pressure.

The court annulled the marriage on grounds of both formal and essential invalidity, as well as duress.

The Applicant wife sought to vary a final divorce order, terminate child support obligations, and set arrears to zero, while the Respondent husband sought various orders including equalization of net family property and repayment of alleged overpaid support.

The court found exceptional circumstances to make final and temporary orders at a case conference, eliminating the Applicant's child support arrears and terminating her support obligation.

The Respondent's claims, including those seeking to vary a separation agreement and freeze property, were deemed non-viable.

The court ordered both parties to retain counsel for future proceedings to ensure claims have a legal basis and to prevent the misuse of judicial resources.

The biological mother appealed a final order that permitted the paternal grandmother to relocate with the child to Alberta and terminated the mother's access.

The appeal focused on the termination of access, arguing the trial judge erred in findings regarding the mother's inconsistency in exercising access and her ability to protect the child from an alleged abuser.

The appellate court applied the palpable and overriding error standard of review for mixed questions of fact and law.

The court found no such error in the trial judge's conclusions regarding the mother's inconsistent access and her failure to protect the child, nor in the decision to terminate access as the only means to serve the child's best interests.

The appeal was dismissed, and costs were awarded to the respondent.

The Applicant brought a motion to strike the Respondent's Answer and related documents due to his persistent non-compliance with multiple court orders regarding financial disclosure and child support payments.

The Respondent sought an adjournment, leave to amend his Answer, and permission for international travel with the child.

The court dismissed the Respondent's adjournment request and limited the scope of his motion.

Finding the Respondent's non-compliance to be exceptional and egregious, the court granted the Applicant's motion to strike the Respondent's Answer with respect to non-parenting issues, allowing financial matters to proceed on an uncontested basis.

The court also imposed travel restrictions on both parties and fixed costs against the Respondent.

The Applicant brought a cross-motion for partial summary judgment regarding the valuation date, and the Respondent brought a motion for disclosure and a valuation report at her valuation date.

The court adjourned the Applicant's cross-motion due to insufficient notice and the need for a full day hearing, and also adjourned the Respondent's disclosure motion until after the valuation date issue is determined.

The Applicant was ordered to pay costs for the adjournment.

This case involved two motions within a Hague Convention application concerning the wrongful removal of four children from the Netherlands to Canada by the respondent mother.

The applicant father sought the children's return and parenting time, while the respondent sought an order for the Office of the Children's Lawyer (OCL) to investigate.

The court dismissed the respondent's OCL motion, emphasizing the Hague Convention's principle of prompt return and the inappropriateness of using an OCL investigation to delay proceedings or ascertain children's views in this context.

The court found that wrongful removal was established based on a Dutch court order confirming joint parental authority and habitual residence in the Netherlands, and the respondent's misrepresentation of her intent to return.

The applicant's motion for parenting time was granted, establishing a schedule for video calls.

Costs were awarded to the applicant, with payment deferred to the judge hearing the main application.

The Holmes defendants sought leave to appeal an order dismissing their fourth motion to set aside a Mareva injunction and ancillary orders.

The motion judge had dismissed the Mareva order challenge on grounds of waiver and res judicata.

The applicant argued for leave based on conflicting decisions and doubt regarding the order's correctness.

The court denied leave, finding no conflicting decision on principle and no serious debate about the order's correctness, emphasizing the unique circumstances and the history of repeated, unsuccessful motions.

The applicant brought a motion seeking extensive disclosure of the respondent's medical and personal records, alleging mental health issues.

The respondent opposed, arguing the requests were irrelevant, privileged, and constituted a fishing expedition.

The court dismissed the applicant's motion, finding no evidence to support the mental health allegations, inferring an element of retaliation given the timing of the requests after criminal charges were laid against the applicant, and concluding the requests were overly broad.

The court awarded $5,000 in costs to the respondent, payable by September 30, 2017, or offset against future financial claims.

The applicant sought leave to appeal an order dated January 27, 2017, which authorized the interim administration of clozapine under the Health Care Consent Act, pending an appeal from a decision of the Consent and Capacity Board.

The applicant also sought a stay of the interim treatment order if leave was granted.

The court dismissed the motion for leave to appeal, finding that the applicant failed to meet the two-part test under Rule 62.02(4) of the Rules of Civil Procedure.

Specifically, there was no conflicting decision on a matter of principle, nor was there sufficient reason to doubt the correctness of the original order.

The court also noted that the proposed appeal did not involve matters of such importance to warrant leave, particularly given the applicant's strategic decision not to accelerate the main appeal involving constitutional issues.

The plaintiff sought leave to appeal an order dismissing its motion for partial summary judgment, where the motion judge found insufficient evidence to precisely identify the intellectual property sought to be protected.

Applying the strict test for leave to appeal under Rule 62.02(4), the court found no conflicting decision on principle and no good reason to doubt the correctness of the order, despite minor issues with the motion judge's articulation of legal tests.

The court also determined that the matter did not raise questions of general or public importance.

The motion for leave to appeal was dismissed, and costs were awarded to the respondent.

The Attorney General of Ontario sought leave to appeal an order dismissing its motion to strike an application concerning post-conviction disclosure and Charter rights for convicted offenders who have served their sentences.

The court granted leave to appeal, finding that the motion judge's reasons were inadequate and conclusory, failing to provide sufficient rationale for dismissing the motion to strike.

The court also found that the motion judge applied the "plain and obvious" test incorrectly to issues of standing and prematurity, which should have been subject to different principles.

The issues raised were deemed to be of public importance, satisfying the conjunctive test for leave to appeal under rule 62.02(4)(b).

David W. Fickel sought leave to appeal from a motion judge's order that stayed the execution of a summary judgment for payment on a promissory note, pending the final resolution of the main action.

The motion judge had granted summary judgment to Fickel on the promissory note but stayed its execution due to the interconnectedness of the claims arising from the same share purchase agreement.

The court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's discretionary decision to grant a stay under Rule 20.08, and that the proposed appeal did not involve matters of general or public importance beyond the immediate parties.

The Applicant sought interim custody, child and spousal support, release of matrimonial home proceeds, and disclosure.

The Respondent sought temporary sole or shared custody, primary residence in Florida, supervised access for the Applicant, and a s. 30 assessment.

The court granted the Applicant temporary sole custody, established a parenting schedule allowing the child to travel to Florida one week per month, ordered the Respondent to pay $75,000 monthly in temporary child and spousal support, and released the net proceeds of the matrimonial home to the Applicant.

The Respondent's motion for a s. 30 assessment was dismissed without prejudice, and his request for a sealing order was adjourned for further submissions.

The court also ordered the Respondent to provide comprehensive financial disclosure.