Gordon D. Lemon

Following a family law motion resolving several financial issues, the court addressed the issue of costs.

The respondent argued she should receive costs while the applicant sought significant costs on various indemnity bases.

Applying Rule 24 of the Family Law Rules and the principles governing costs awards, the court found the applicant had been substantially successful on the motion.

The court rejected attempts by the respondent to characterize the result as mixed and emphasized that costs must reflect what the unsuccessful party would reasonably expect to pay.

Costs were fixed at $21,000 payable by the respondent.

The applicant sought interim custody or primary residence of the parties’ child, defined access for the respondent, child support, and contribution to daycare expenses.

The respondent sought expanded access and a change of the child’s school.

The court held that the child’s primary residence should remain with the applicant given the status quo and the child’s long-standing residence and daycare arrangements.

The court rejected the respondent’s claim that his parenting time reached the 40 percent threshold under s. 9 of the Federal Child Support Guidelines and ordered table child support based on the respondent’s income for relevant periods.

The request to change the child’s school was dismissed on an interim basis pending further evidence.

The moving defendants sought leave to amend their statement of defence and cross-claim to add a claim for damages against a co-defendant.

The co-defendant opposed the amendment, arguing the two-year limitation period had expired.

The court found there was a triable issue regarding when the moving defendants knew or ought to have known of the co-defendant's alleged negligence in loading the cargo.

The court granted leave to amend, with the co-defendant permitted to plead a limitations defence.

Following reasons granting judgment to the applicant on a dispute arising from a share purchase and pledge arrangement, the court determined the appropriate costs award.

The successful party sought costs on a full or substantial indemnity basis, while the responding parties argued that success was divided or that costs should be reduced.

The court held the applicant was clearly the successful party and entitled to costs but found no litigation conduct justifying full or substantial indemnity.

Applying Rule 57.01 of the Rules of Civil Procedure and considering proportionality, complexity, and reasonable expectations, the court fixed costs on a partial indemnity basis.

Costs were set at a lump sum payable jointly and severally by two respondents.

The moving party sought to vary a final child support order by reducing his support obligation based on an alleged decline in income.

The original order was made on consent using an acknowledged income significantly higher than that reported on the moving party’s tax return, reflecting substantial cash income from tips.

The court held that on a motion to change the original order is presumed correct and the moving party bears the burden of proving a material change in circumstances.

The evidence, including the moving party’s income tax returns, showed his reported income had increased rather than decreased.

The court found no material change and dismissed the application to reduce child support.

The applicant brought a motion for interim child support for two children based on an imputed income of $50,000 to the respondent and requested the order be retroactive to the date of separation.

The respondent argued that support should be calculated based on his limited employment insurance income and recent temporary employment.

The court held that it should be cautious about imputing income on an interim motion without clear evidentiary support and found insufficient evidence to justify imputing $50,000.

However, the court determined it was reasonable to expect the respondent could earn at least $20,000 annually and imputed that amount for interim purposes.

Interim child support was set at $306 per month effective January 1, 2015, with credit for payments already made.

The insurer brought a motion seeking an order requiring the plaintiff to undergo a capacity assessment under the Substitute Decisions Act and requesting that income replacement benefits be paid into court pending the assessment.

The plaintiff opposed the motion and sought direct payment of benefits.

The court considered the statutory presumption of capacity and the factors governing intrusive capacity assessments under s. 105 of the Courts of Justice Act.

Although medical reports documented chronic pain, depression, and psychological symptoms, the evidence did not establish a sufficient basis to believe the plaintiff lacked capacity.

The motion was dismissed and the insurer was ordered to resume payment of outstanding income replacement benefits.

The respondent husband brought a motion to set aside prior family court orders granting a divorce, ordering the sale of the matrimonial home, granting exclusive possession to the applicant wife, and authorizing her to sign documents for the sale.

He alleged he had not been served with the original application or a subsequent motion that led to his eviction from the home.

The court found he had been properly served with the application and was deemed served under the Family Law Rules, and that his failure to file an answer meant he was not entitled to further notice of steps in the case.

Applying the test for setting aside a default judgment, the court concluded the moving party had no plausible excuse for the default and no arguable defence on the merits.

The motion was dismissed and the applicant wife was granted additional compensation from the moving party’s share of the sale proceeds for charges placed against the property.

The applicant brought a motion for summary judgment seeking retroactive and ongoing child support and s. 7 expenses following separation.

The respondent argued that the parenting arrangement met the 40 percent threshold for shared custody under s. 9 of the Federal Child Support Guidelines and that support should be set-off.

The court held there was no genuine issue regarding retroactive support prior to June 5, 2015 and fixed arrears based on the respondent’s income, rejecting attempts to offset household expenses or costs against support obligations.

However, the court found that whether the 40 percent threshold would apply going forward and whether claimed s. 7 expenses were reasonable required a trial.

The balance of the summary judgment motions was dismissed.

The defendants and third party brought a motion for security for costs against the plaintiff, who ordinarily resides in India following a slip and fall incident in Ontario.

The plaintiff opposed the motion, claiming impecuniosity and relying on an adverse costs protection insurance policy.

The court found the plaintiff's evidence of impecuniosity insufficient and held that the insurance policy did not provide adequate security for the defendants due to its numerous exclusions and misrepresentations in the application.

The court ordered the plaintiff to post $7,500 in security for the defendants' costs but dismissed the third party's request, as the plaintiff had not sued the third party.

The applicant trucking company sought a declaration that the respondent towing company was not entitled to a lien on its tractor under the Repair and Storage Liens Act.

The tractor was damaged in a collision while being towed by the respondent and was subsequently stored at the respondent's yard.

The court found the respondent was not entitled to a repairer's lien as no repairs were performed, nor a storer's lien as there was no agreed amount or evidence of fair value for storage.

The court ordered the respondent to release the tractor and directed a trial on the issue of unpaid towing and storage fees.

Interim family law motions addressing numerous issues including sale of the matrimonial home, child support, interim equalization, spousal support, disclosure, and various ancillary relief.

The court declined to order an immediate sale of the matrimonial home and left several financial disputes, including occupation rent, vehicle payments, income imputation, and entitlement to spousal support, for determination at trial.

The court ordered the applicant to pay guideline child support retroactive to July 2014 and granted the respondent an interim equalization payment to assist with legal expenses.

Several requests brought by the applicant, including spousal support, third‑party orders, restraining relief, and interim expenses, were dismissed for lack of evidentiary support.

Disclosure disputes and production issues were left to ongoing procedural timelines and trial management.

The moving party sought to strike the plaintiff’s Superior Court action as an abuse of process, arguing that the plaintiff’s earlier Small Claims Court proceeding—later dismissed as abandoned—barred the new action.

The court held that the Small Claims Court dismissal was administrative and not a determination on the merits.

The endorsement from the settlement conference did not constitute a binding order requiring transfer to the Superior Court, and the defendant had not demonstrated prejudice.

Applying the flexible abuse of process doctrine, the court concluded that allowing the claim to proceed would not undermine the administration of justice.

The moving party brought an interim motion within a motion to change seeking to prevent the child’s relocation and requesting that the child remain enrolled in her current school pending determination of the motion to change.

The responding parent intended to move approximately one hour away and enroll the child in a different school.

The court held that the evidentiary record, consisting primarily of conflicting affidavits, was insufficient to justify an interim change of custody or relocation affecting the existing parenting schedule.

Given the existing joint custody order and the child’s long-standing residence with the responding parent, the court declined to vary the custody arrangement on an interim basis.

The responding parent was ordered to maintain the child’s residence within the existing school attendance boundaries to preserve stability pending further proceedings, and the Office of the Children’s Lawyer was requested to assist.

Following a successful motion permitting the mother to travel internationally with the parties’ children without the father’s consent, the court addressed costs under the Family Law Rules.

The mother sought $5,573.65 in costs, while the father argued that no costs or a reduced amount should be ordered.

Applying Rule 24, the court considered the presumption that the successful party receives costs, the complexity and importance of the issues, the reasonableness of the parties’ conduct, and the rates and hours claimed.

Although the matter was straightforward, it was significant to the parties and the children.

The court awarded reduced costs reflecting fairness and proportionality.

Following a successful wrongful dismissal judgment of approximately $175,000, the plaintiff sought costs exceeding $136,000 plus disbursements and additional amounts for defending a counterclaim.

The defendant argued for a substantially lower costs award and sought its own costs for a post‑judgment attendance.

Applying Rule 57.01 of the Rules of Civil Procedure and relevant jurisprudence on costs principles, the court assessed the result of the litigation, the reasonableness of counsel’s time and rates, the complexity of the case, and the parties’ conduct.

The court noted the plaintiff succeeded overall but failed on several issues and had been found to have lied during the proceedings, while the defendant withdrew a counterclaim at the start of trial.

Balancing these factors, the court fixed costs at a global amount inclusive of HST and disbursements.

The plaintiff brought a motion for leave to amend the statement of claim to add his spouse as a Family Law Act claimant arising from a motor vehicle accident.

The proposed amendment was brought years after the accident and after the presumptive limitation period had expired.

The court held that the moving party failed to provide sufficient evidence to rebut the presumption under s. 5(2) of the Limitations Act, 2002 that the proposed claimant knew or ought to have known of her claim within the limitation period.

The court also noted procedural deficiencies, including the absence of the proposed plaintiff’s consent as required by the Rules of Civil Procedure.

Given the lack of evidentiary foundation and the prejudice to the defendants due to delay and impending trial steps, leave to add the claimant was refused.

On a motion concerning parenting time for a young child following separation, the court was required to establish an interim access regime pending further proceedings.

Both parents sought differing schedules for the father’s parenting time.

Applying the best interests of the child test under s. 16 of the Divorce Act and considering the principle of maximum contact consistent with the child’s interests, the court structured a detailed schedule including alternate weekend access and midweek evening access for the father.

The court also imposed strict transportation and communication protocols to minimize parental conflict.

Costs were reserved due to mixed success.

The applicant moved for summary judgment to enforce a settlement agreement against his brothers and their related companies following an oppression remedy application.

The parties had entered into a share purchase agreement in September 2013, which the respondents breached by defaulting on payments.

Subsequent settlement negotiations in 2014 failed to result in a binding agreement because the issue of costs remained unresolved.

The court found the 2013 agreement was binding, the respondents were in breach, and there was insufficient evidence of prejudice to justify refusing enforcement.

Judgment was granted enforcing the terms of the 2013 agreement.

The court determined costs following competing motions concerning enforcement of minutes of settlement in a family law dispute.

The respondent initially denied the existence of a binding settlement and brought a cross‑motion seeking various interim remedies but ultimately consented to judgment based on handwritten minutes of settlement previously executed by all parties.

The court found that the respondent’s affidavit evidence denying the agreement was inconsistent with her later position and constituted unreasonable litigation conduct that necessitated extensive motion materials and preparation.

Applying Rule 24 of the Family Law Rules and the principles governing costs awards, the court held that the moving party had been entirely successful and was entitled to costs.

Costs were fixed at $30,000 all-inclusive and ordered payable from settlement funds held in trust.