Harley Edward Bernard

This decision addresses costs following a motion and cross-motion in a family law matter.

The Respondent Wife sought spousal support, interim disbursements, and financial disclosure, while the Applicant Husband brought a cross-motion for similar relief.

The court found the Wife largely successful, particularly due to the Husband's delayed and incomplete financial disclosure, which was deemed to be in bad faith.

The Wife's offers to settle surpassed the court's eventual order on spousal support and disbursements.

The court awarded the Wife fixed costs of $27,000, with $16,200 enforceable by the Family Responsibility Office, considering the Husband's conduct and the parties' financial circumstances.

This decision addresses companion motions concerning disclosure, imputation of income, spousal support, and an advance for interim fees and disbursements.

The court found a pattern of late disclosure by the Applicant, Peter Michael Probst, and drew an adverse inference regarding his income.

The court declined to impute income to the Respondent, Tasmeen Shah, due to her documented medical condition.

Interim spousal support was ordered for Ms. Shah, and an advance for her legal fees and disbursements was granted to ensure procedural fairness, given the complexity of financial issues and Mr. Probst's non-disclosure.

An appeal concerning the division of proceeds from the sale of a family residence held as joint tenants by parties in a common law relationship.

The appellant contributed $5,000 to the purchase price while the respondent contributed $116,000.

The trial judge found that the appellant failed to rebut the presumption of resulting trust and that there was no unjust enrichment.

The Court of Appeal upheld the trial judge's decision, finding no basis to interfere with the findings regarding the presumption of resulting trust and the unjust enrichment analysis.

The appellant appealed a trial judge's order requiring him to pay spousal support of $1,000 per month.

He argued the trial judge misapprehended the evidence regarding the nature of their relationship, their finances, and the respondent's income.

The Divisional Court found that while the trial judge made a factual error regarding whether the respondent's children lived with the parties, this did not constitute a palpable and overriding error affecting the non-compensatory support award.

The appeal was dismissed.

The applicant brought a motion to reopen the evidence of a July 2016 trial regarding spousal support, arguing that new evidence about the respondent's housing, increased income, and his own decreased income justified changing the support order.

The court applied the two-part test for admitting fresh evidence before a judgment is entered.

The court found that the new evidence either could have been discovered with reasonable diligence or would not have changed the outcome of the trial.

The motion was dismissed, and the original spousal support order was directed to be issued and enforced.

The applicant sought an order requiring the respondent to pay $84,610 in interim disbursements pursuant to Rule 24(12) of the Family Law Rules in advance of trial.

The motion was heard shortly before trial and significant affidavit evidence was excluded under Rule 14(20)4, limiting the applicant’s evidentiary record.

The court reviewed the principles governing interim disbursements, including the need to demonstrate that the claim has sufficient merit and that the moving party lacks the financial ability to pursue the litigation without assistance.

Although there was a significant income disparity between the parties, the applicant failed to establish that the requested disbursements were necessary, reasonable, or that she was incapable of funding the litigation, particularly where substantial amounts had already been paid.

The motion was dismissed and costs were awarded to the respondent.

The moving party sought an extension of time to appeal an order dismissing his requests to add a counterclaim, consolidate proceedings, and stay a Small Claims Court matter.

The court applied the factors from Rizzi v. Mavros and found that while the moving party had an intention to appeal and a reasonable explanation for the delay, the proposed appeal lacked merit.

Given the moving party's overly litigious conduct and the lack of merit, the justice of the case required dismissing the motion to bring closure to the proceedings.