Frances P. Kiteley

This is a costs decision following several family law motions.

The applicant sought costs for an urgent motion regarding the respondent's undisclosed mortgage advance, as well as for the respondent's dismissed motion for temporary support and the applicant's successful motion for a section 30 assessment.

The court found the respondent's behaviour regarding the mortgage advance to be unreasonable, bordering on bad faith, and awarded the applicant substantial indemnity costs for the urgent motion.

The court also awarded the applicant costs for the support and assessment motions, noting her success and a favourable offer to settle.

The respondent was ordered to pay total costs of $21,308.65.

Following the dismissal of the mother's appeal from two family law arbitration awards, the father sought full recovery of costs totaling $99,284.63 based on offers to settle.

The mother argued for no costs or costs fixed at $20,000.

The court found the father was presumptively entitled to full recovery of costs from the date of his first offer to settle, which was as favourable as the outcome of the appeal.

After considering the principles of proportionality and reasonableness, and noting discrepancies in the hours docketed by both sides, the court fixed the father's costs at $70,000 inclusive of fees, disbursements, and HST.

The respondent sought full indemnity costs of $39,434.18 following a successful motion where the applicant's conduct was found to demonstrate bad faith.

The self-represented applicant opposed the quantum, asserting impecuniosity and over-lawyering by the respondent's counsel.

The court rejected the applicant's arguments, finding no evidence of impecuniosity and concluding that the time spent by the respondent's counsel was proportional to the complexity of the issues.

The applicant was ordered to pay the full amount claimed.

The applicant brought a motion to amend a final order, alleging fraud by the respondent.

The court previously dismissed the motion, finding no fraud, but corrected three calculation errors conceded by the respondent.

In this costs endorsement, the respondent sought full indemnity costs due to the unproven fraud allegations.

The court rejected the applicant's request to defer costs to the trial judge, finding the applicant persisted with baseless fraud claims despite the respondent's early concessions.

The applicant was ordered to pay full indemnity costs of $16,615.59.

Following a motion for temporary child support, the party seeking costs sought full indemnity costs.

The court found that the opposing party had behaved unreasonably by failing to provide evidence of current income, making irrelevant submissions, and failing to accept a reasonable offer to settle.

The court awarded full indemnity costs in the amount of $19,924.73.

The applicant's motion for disclosure was dismissed, making the corporate respondents presumptively entitled to costs.

However, the court found that the corporate respondents behaved unreasonably by relying on an inadmissible affidavit and failing to respond to the court's directions regarding their conduct.

As a result, the court discounted their partial indemnity costs by 25% and ordered the applicant to pay $7,500 in costs.

On a family law motion, the moving party sought temporary spousal support, temporary child support, and security following the breakdown of a long marriage with one economically dependent spouse and one high-income payor.

The court held that the moving party established prima facie entitlement to interim spousal support under s. 15.2 of the Divorce Act, declined to conduct a detailed imputation analysis on the motion, accepted the recipient's actual income, and fixed the payor's income at $508,000 for temporary support purposes.

The court ordered child support of $3,000 monthly retroactive to January 1, 2020, and spousal support retroactive only to August 1, 2020, rejecting claims for set-off based on expenses and declining to adjust support for cross-border tax consequences without expert evidence.

A support deduction order was directed to issue.

The applicant mother brought a motion for an order requiring the respondent father to undergo a psychiatric assessment under s. 105 of the Courts of Justice Act, and for production of his former lawyer's file.

The respondent brought a cross-motion for production of the parties' marriage counsellor's file.

The court dismissed the motion for a psychiatric assessment, finding it unnecessary for the financial and contractual issues, and lacking evidentiary basis for parenting issues.

However, applying the amended Divorce Act, the court ordered a s. 30 Children's Law Reform Act parenting assessment on its own initiative.

The court ordered production of the respondent's former lawyer's file as he had waived privilege by pleading duress and lack of understanding regarding a separation agreement.

The court dismissed the request for the marriage counsellor's file, citing statutory privilege under the Divorce Act.

The court determined costs following a case conference, a preservation motion, and a jurisdiction motion in a family law proceeding.

The respondent sought full indemnity costs, while the applicant argued he should not pay costs and sought his own costs, alleging bad faith by the respondent.

The court found that the applicant had acted in bad faith and abused the court's process by deceiving the court about his reasons for an adjournment.

The court awarded the respondent partial indemnity costs for the case conference, substantial indemnity costs for the preservation motion, and full indemnity costs for the jurisdiction motion, totaling $35,532.87.

The respondent mother brought a motion for temporary and retroactive child support and section 7 expenses.

The applicant father, a high-income physician who relocated to the United States, argued that the Federal Child Support Guidelines should not apply because the children reside in Tennessee where the cost of living is lower, and his income exceeds $150,000.

The court rejected these arguments, finding the Guidelines applied and the table amount was appropriate.

The court imputed the father's income at over $716,000 for 2020 and 2021 due to his failure to provide reliable current income information.

The father was ordered to pay $8,874 per month in ongoing child support, 72.3% of ongoing section 7 expenses, and over $234,000 in retroactive support and expenses.

In an uncontested family law trial, the applicant father sought decision-making responsibility, child support, and an equalization of net family property.

The respondent mother's pleadings had been struck and she did not participate.

The court granted the father sole decision-making responsibility and ordered the mother to pay retroactive and prospective child support.

The court declined to attribute value to the mother's contingent interest in a property for equalization purposes, resulting in the father owing a modest equalization payment.

The father was awarded $33,000 in partial indemnity costs.

The applicant father brought a motion under Rule 25(19) of the Family Law Rules to set aside or vary a 2018 final order regarding child support arrears and section 7 expenses.

He alleged the order was obtained by fraud because the respondent mother misrepresented facts about where the children lived and her income.

The court found that the father had wilfully ignored the 2018 proceedings despite having notice, and failed to prove fraud.

The motion was dismissed, save for minor calculation errors conceded by the mother.

The parties brought multiple motions regarding temporary spousal support, child support, and a section 30 assessment.

The respondent sought temporary spousal support based on an alleged income disparity, but the court dismissed the motion, finding his income evidence unreliable due to significant unreported cash deposits.

Both parties' motions for temporary child support were dismissed given the equal parenting schedule and the inability to accurately determine the respondent's income.

The applicant's motion for a section 30 assessment was granted to address the children's struggles and the high-conflict co-parenting dynamic.

On a family law motion brought by the mother, the court ordered temporary ongoing child support, related insurance relief, and disclosure, while adjourning the claim for retroactive child support for earlier years.

The court refused a broad adjournment sought by the father despite counsel illness and late file transfer issues, holding that the child’s entitlement to support and the mandatory application of the Child Support Guidelines justified determining current support immediately.

Pending fuller disclosure, the court used the father’s 2018 line 150 income rather than the lower 2019 line 15000 amount or the mother’s proposed gross-income calculation.

The court also held that s. 9 of the Child Support Guidelines did not apply on the parenting record before it.

The mother appealed two arbitration awards that granted the father equal parenting time and ordered her to pay $25,000 in costs.

She argued the arbitrator erred in applying the best interests of the child test, changing the parenting schedule without expert evidence, and assuming equal time would reduce conflict.

The mother also sought to introduce fresh evidence, including an affidavit from a former therapist.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding errors in the arbitrator's decisions.

The court also rejected most of the fresh evidence, noting the therapist did not qualify as a participant expert and the evidence did not meet the Palmer test.

The applicant, a member of the Canadian Armed Forces, received notice of relocation to Manitoba and sought an urgent case conference after the respondent refused to consent to the child's relocation.

The court reviewed the recent relocation amendments to the Children's Law Reform Act, noting the applicant appeared to have complied with the notice requirements.

The court granted the request for an urgent case conference to allow the parties to receive judicial input on the new relocation protocol and ordered the respondent to formally notify the applicant of his objection.

The applicant mother brought an uncontested trial seeking retroactive and ongoing child support for the parties' adult daughter, who was attending university.

The respondent father had stopped paying support and failed to file an Answer or financial disclosure.

The court found the daughter remained a child of the marriage and imputed the father's income at $128,873 based on bank records.

The court ordered the father to pay $25,612.16 in table support arrears, $17,490.69 in section 7 expense arrears, and $1,992.00 in costs.

The applicant brought a motion seeking production of a lawyer's file, arguing she had an explicit or implicit solicitor-client relationship with him, or alternatively, that the respondents waived privilege.

The lawyer had acted for the respondent and the corporate respondents during a period when the parties were allegedly involved in a joint family venture involving cryptocurrency.

The court found the applicant failed to establish a solicitor-client relationship, as the few documents she relied on were insufficient to show she was led to believe he was her lawyer.

The court also found no evidence that the respondents waived privilege.

Although the motion was dismissed, the court struck significant portions of the respondent's affidavit for relying on inadmissible hearsay in breach of the Family Law Rules.

The applicant sought costs following a successful motion for interim spousal support and disclosure of cryptocurrency holdings.

The court reviewed the parties' offers to settle and found the applicant beat her offer regarding spousal support and met her offer regarding native file format disclosure.

The applicant was awarded costs of $104,533 on a substantial recovery basis.

The corporate respondents were successful on a discrete issue regarding a server and were awarded costs of $12,600 on a partial indemnity basis, to be paid from the applicant's costs award.

Following a motion and cross-motion with divided success, the applicant sought costs of $25,000.

The respondent argued for no costs or costs reserved, citing limited means and divided success.

The court found the applicant was presumed entitled to costs as the respondent's motion was dismissed and the applicant achieved some success.

The court fixed costs at $12,000 on a partial indemnity basis, payable by the respondent within 120 days due to his limited means.