Gary Stuart Joseph

The applicant, Carmela Maria Capone, moved to quash the appeal of the respondent, Zoran Fotak, from two interlocutory orders made in ongoing family law proceedings.

The motion judge had ordered the respondent to bring a stay motion as a condition for his jurisdictional challenge to be heard, clarifying that no decision on the merits of the jurisdictional challenge had been made.

The Court of Appeal found the orders to be interlocutory and not appealable, as they did not determine any substantive claim or defence.

Consequently, the appeal was quashed.

This endorsement addresses several outstanding issues following a previous decision, primarily concerning parenting time, shared expenses, and communication.

The court adjusted the father's weekday parenting time to include specific non-overnight periods on Tuesdays and Thursdays when he does not have weekend parenting time, with shared transportation responsibilities.

The court also clarified the sharing of daycare costs, commencing January 1, 2021, and the mother's responsibility for 407 tolls incurred solely for child transportation, acknowledging the impact of her move.

Additionally, the parties were ordered to use the Our Family Wizard app and attend questioning by videoconference.

The court declined to waive the requirement for a case conference before any further motion on parenting time, emphasizing the suitability of case conferences for such scheduling matters.

The respondent brought a motion to terminate her child support obligations for two adult children, arguing they were no longer enrolled in educational programs and thus not "children of the marriage" under the Divorce Act.

The applicant opposed, asserting the children remained dependants and sought to stay the motion due to arrears.

The court denied the stay, finding the respondent's arrears did not warrant it.

The court determined that while a "gap year" is permissible, the children's extended periods out of school, by choice, meant they no longer qualified for support.

Child support for one child was terminated effective December 2019 and for the other effective June 2020, resulting in a significant overpayment to the respondent.

The decision was made without prejudice to future applications if the children re-enroll.

This is an appeal from a trial decision in a high-conflict matrimonial litigation case where the respondent's pleadings were struck due to willful non-compliance with disclosure orders.

The appellant challenged the trial judge's approach to evidence, refusal to recognize a constructive trust, spousal support determination, denial of a vesting order, and the costs award.

The Court of Appeal dismissed the appeal on all grounds, affirming the trial judge's discretion in probing evidence even in an uncontested trial, applying the net family property scheme, and exercising discretion regarding support, vesting orders, and costs.

The court also reaffirmed the principle that a party in willful default of court orders may be denied audience on appeal.

The moving party sought leave to appeal an order requiring him to disclose certain information.

He had also brought a separate motion before the motion judge to correct a mistake in the same order pursuant to rule 25(19)(b) of the Family Law Rules.

The Divisional Court held that the leave to appeal motion was premature and adjourned it until the motion to correct the order was decided and finalized.

This endorsement addresses the costs arising from an appeal and underlying arbitration concerning child vaccination decisions.

The appellant father had successfully appealed an arbitrator's decision, gaining sole final responsibility for vaccination-related decisions for the children.

The court considered the principles governing costs awards, including the presumptive entitlement of the successful party, the treatment of pro bono counsel for costs recovery, and the assessment of offers to settle.

The court found the appellant was the successful party but did not beat his offer to settle.

It concluded that costs on a partial indemnity scale were appropriate, ordering the respondent to pay the appellant $52,000 all-inclusive for costs of both the appeal and arbitration.

The appellant wife appealed a trial decision concerning the division of net family property and claims for spousal and child support following a five-year marriage.

The appeal raised issues regarding the beneficial ownership of properties, the application of resulting trust principles, the deductibility of alleged loans from family members, and the dismissal of support claims.

The Court of Appeal found no errors of law or palpable and overriding errors in the trial judge's findings of fact or application of legal principles, noting that the trial judge's conclusions were well-grounded in the evidence and clearly explained.

The appeal was dismissed.

The applicant mother sought to relocate the children's residence to Texas.

The respondent father brought a motion for summary judgment to dismiss the application, arguing that the parties' separation agreement strictly prohibited relocation for seven years.

The court interpreted the separation agreement and found it permitted relocation with consent or a court order, meaning there was a genuine issue for trial regarding the children's best interests.

The court dismissed the summary judgment motion but stayed the application, ordering the parties to proceed to arbitration pursuant to the dispute resolution clause in the separation agreement.

The appellant appealed an arbitrator's award that determined it was not in the best interests of the parties' two children to be vaccinated.

The Superior Court of Justice allowed the appeal, finding the arbitrator erred in his gatekeeping function by qualifying the respondent's experts, whose evidence on vaccine safety was unreliable and outside their expertise.

The arbitrator also erred by failing to admit government immunization guides under the public documents exception to the hearsay rule.

Having excluded the respondent's expert evidence and admitted the public documents and fresh expert evidence, the court found that the children's best interests required vaccination.

The appellant was granted sole decision-making responsibility for the children's vaccinations, and the respondent was ordered not to tell the children that vaccines are unsafe.

The accused threw a heavy trailer hitch from a moving vehicle, striking the victim in the abdomen and rupturing her small bowel.

The victim, who suffered from advanced liver disease, underwent surgery but died five months later from complications including peritonitis and pneumonia.

The accused pleaded guilty to aggravated assault but contested the manslaughter charge, arguing his actions did not cause her death or that delayed medical treatment broke the chain of causation.

The court found that the blunt force trauma was a significant contributing cause that accelerated her death, and that no intervening act severed legal causation.

The accused was found guilty of manslaughter.

The applicant mother brought a motion for an order allowing the parties' three children to travel to Texas for her parenting time during the Christmas holidays.

The respondent father opposed the motion, citing a recent consent order precluding international travel without a quarantine exemption, and the health risks and school disruptions associated with the COVID-19 pandemic.

The court dismissed the motion, finding that the consent order was determinative and that, in any event, the proposed travel and subsequent quarantine were not in the children's best interests.

The respondent mother filed a 14B Motion seeking a temporary stay of the court's September 28, 2020 order granting the applicant father decision-making authority over the child's vaccination decisions.

The motion was dismissed on three grounds: (1) the motion was opposed and not appropriate for 14B procedure; (2) there was no urgency or pressing need, as the mother delayed filing the appeal and did not pursue an earlier hearing date in the Superior Court; and (3) insufficient evidence was provided to satisfy the stay test.

The court found that the mother should pursue her stay motion in the Superior Court as scheduled for November 24, 2020.

Following an appeal, the court issued a costs endorsement.

The respondent on appeal was awarded partial indemnity costs in the amount of $10,000 inclusive of disbursements and applicable taxes.

The appellant appealed the trial judge's orders regarding prospective and retroactive spousal and child support, as well as the trial costs award.

The trial judge had imputed income to the respondent due to income fluctuations and denied retroactive support because the appellant's bankruptcy had relieved her of the tax debt that caused her financial hardship.

The Court of Appeal applied a deferential standard of review, finding no material error or serious misapprehension of the evidence by the trial judge.

The appeal was dismissed.

The parties were involved in a family law dispute over custody and access.

The applicant obtained an ex parte Anton Piller order and an order for supervised access based on evidence from a witness (C.B.W.) alleging the respondent solicited sexual services from minors.

The respondent brought a motion to question C.B.W. before filing responding evidence, citing concerns about self-incrimination in an ongoing police investigation.

The applicant brought a cross-motion to compel the respondent to file responding evidence and attend questioning.

The court dismissed the respondent's motion, finding it would be unfair to allow questioning without reply evidence.

The court granted the applicant's motion, ordering the respondent to file responding affidavits and attend questioning, holding that the best interests of the child outweighed the respondent's self-incrimination concerns.

The moving party (respondent mother) brought a motion seeking the recusal of the case management judge from hearing an appeal regarding the vaccination of the parties' children.

The moving party argued that a reasonable apprehension of bias existed based on the judge's prior preliminary rulings in the case, decisions in unrelated family law cases involving public health guidelines, and media coverage of those decisions.

The court dismissed the motion, finding that the prior decisions were based on existing law and did not demonstrate that the judge had entered the fray or predetermined the issues.

The court also held that a reasonable person would not rely on provocative media articles to conclude the judge could not decide the appeal fairly.

The respondent brought a motion to set aside ten previous court orders, arguing the court lacked jurisdiction because he was not properly served under the Hague Service Convention.

The applicant brought a cross-motion seeking to refuse the respondent an audience because he remained in continuous breach of those orders.

The court held that a litigant cannot ignore court orders and still demand an audience.

The court directed that the respondent must first bring a motion to stay the impugned orders; if successful, he may proceed with his jurisdiction motion, but if unsuccessful, he will be refused an audience until he complies.

The court determined costs for previous motions where the applicant mother's motion was dismissed and the respondent father's responding motion was successful.

The father sought full recovery costs due to the mother's unreasonable behaviour and his offer to settle being exceeded.

The court found the mother's conduct unreasonable, including ignoring a separation agreement and proposing unsafe travel for children during COVID-19, but not rising to bad faith.

Considering the father's superior offer to settle and the mother's unreasonable conduct, the court fixed the father's costs at $6,500, inclusive of fees, HST, and disbursements.

The respondent, having been entirely successful on the appeal of a family law matter, sought partial indemnity costs of $53,407.33.

The appellant argued the costs should not exceed $18,789.66.

The Court of Appeal applied the principle that costs must be fair, reasonable, and proportionate.

Acknowledging the voluminous record and the importance of the issues, including child custody, the court fixed the costs payable by the appellant to the respondent at $35,000 inclusive of disbursements and taxes.

The appellant mother appealed a trial judge's order granting sole custody of their daughter to the respondent father, ordering her to pay child support, equalization, and full recovery costs of $249,765.47.

The appellant argued that the trial process denied her natural justice, the credibility assessment was flawed, and the trial judge erred in determining income and post-separation adjustments.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's credibility assessment, her focus on the child's best interests, or her financial determinations.

Leave to appeal the costs award was also denied, as the trial judge properly exercised her discretion based on the appellant's bad faith conduct.