James Garnet Battin

This endorsement addresses the issue of costs following a family law trial.

The applicant, Rona Elizabeth Scott, sought full recovery of her legal costs on the basis that the respondent, Thomas Ryan Scott, acted in bad faith by advancing a baseless claim that the applicant was secretly an internet porn star, which the court found to be "patently ridiculous." The court found that the applicant was successful on virtually every issue, and that the respondent's conduct met the definition of bad faith, warranting a full recovery of costs.

Costs were fixed at $57,800, payable by the respondent forthwith.

This decision resolves a high-conflict divorce proceeding between Rona Elizabeth Scott and Thomas Ryan Scott, addressing issues of parenting time, child and spousal support (both retroactive and ongoing), equalization of net family property, and related matters.

The court grants sole decision-making authority and primary residence to the applicant, orders child support based on imputed income due to the respondent's intentional unemployment, and calculates retroactive and ongoing support.

The court also addresses a complex promissory note and inheritance issue, and rejects the respondent's claims regarding alleged proceeds from a "pornographic lifestyle" as entirely lacking in merit.

The court considered the appropriate scope of a mistrial declaration following a breach of the applicant’s right to full and complete disclosure under section 7 of the Charter.

The applicant sought a mistrial only on the counts for which he was convicted, while the Crown argued for a mistrial on all counts.

The court found that the undisclosed evidence would not have affected the acquittal on the third count and granted a mistrial only on counts 1 and 2, leaving the acquittal on count 3 undisturbed.

The applicant, Trevor Birtch, sought a mistrial on two counts of sexual and common assault after being found guilty, alleging a breach of his s. 7 Charter right to fundamental justice due to inadequate Crown disclosure.

A key witness statement (T.W.S.) relevant to the T.P. complainant's credibility was disclosed in a separate prosecution file and not reviewed by defence counsel until after the verdict.

The court found the Crown breached its disclosure obligation by failing to provide proper and targeted disclosure for the T.P. prosecution.

Applying the Palmer criteria for fresh evidence and considering the impact on trial fairness and credibility findings, the court granted the mistrial application, deeming it the only effective remedy to redress the Charter breach.

This is a costs decision following a three-day family law trial concerning parenting and decision-making for a child.

The respondent sought partial indemnity costs, arguing greater success and unreasonable conduct by the applicant.

The applicant sought no costs, citing divided success and modest financial resources.

The court found that while the respondent was somewhat more successful overall, neither party fully met their settlement offers, and both exhibited reasonable and unreasonable conduct at various stages of the litigation.

The court ultimately ordered each party to bear their own costs, concluding that the trial was unnecessary and both parties should have done more to avoid it.

The respondent father brought a motion to change a shared parenting order, seeking sole decision-making and primary residence, while the applicant mother sought to maintain the shared arrangement or a week-about schedule.

The court found a material change in circumstances due to the child's aging, the unworkable original schedule, and high parental conflict.

Applying the best interests of the child test, and giving significant weight to the child's expressed views from Voice of the Child Reports, the court ordered joint decision-making and primary residence with the father during the school week, with extended alternate weekend and Wednesday parenting time for the mother, and a week-about schedule during summer holidays.

The court also addressed child support arrears.

The parties, married in 2015 and separated in 2019 with two children, resolved many issues through partial minutes of settlement.

The trial addressed remaining disputes including Easter parenting time, travel notice requirements, child support and arrears (specifically imputation of income for rent-free accommodation), Section 7 expenses, Facetime/phone contact with children, children's birthdays, parent birthdays, and counselling for the children.

The court made specific orders on each of these issues, notably imputing income to the applicant for rent-free housing and ordering a psychological assessment for one child due to concerning behavioral incidents.

This endorsement addresses the costs arising from a trial where the plaintiffs were largely successful in their claims regarding property deficiencies against the defendants.

The court considered the parties' offers to settle, which did not trigger Rule 49, and applied the principles of Rule 57.01 of the Rules of Civil Procedure.

Factors such as the plaintiffs' greater success, the relative straightforwardness of the proceeding, and the parties' conduct in shortening the trial were weighed.

The court found the plaintiffs' claim for costs reasonable, with a modest reduction due to their partial success, and ordered the defendants to pay $20,000.00 inclusive of HST and disbursements.

This case involves a motion to change brought by the mother (C.M.R.) seeking to vary existing decision-making and parenting time orders for the parties' child, K.R. The mother initially sought sole decision-making and primary residence, while the father (R.S.C.) sought dismissal of the motion and child support.

By the end of the trial, the mother sought joint decision-making and shared parenting, and the father conceded a material change in circumstances.

The court found a material change due to the child's academic struggles and the mother's improved stability.

The court ordered joint decision-making with the father having the final say in disagreements, and maintained the child's primary residence with the father, with expanded parenting time for the mother.

Child support was ordered from the mother to the father, and section 7 expenses were to be shared equally.

The plaintiffs purchased a home from the defendants and subsequently discovered several deficiencies, including a missing retaining wall for a newly built shop driveway and significant water leakage in the basement.

The plaintiffs sought damages for these deficiencies and punitive damages.

The court found the defendants liable for the costs of constructing the retaining wall, applying the doctrine of rectification or contract interpretation, and for the basement water damage under the Ontario New Home Warranties Plan Act.

Other claims for deficiencies and punitive damages were dismissed.

The accused was tried on a single count of sexual assault arising from multiple alleged sexual incidents with a 16-year-old complainant who was a friend of his son and frequently attended his home.

The court accepted the complainant’s evidence on four incidents, rejected the accused’s denial that any sexual acts occurred, and found the defence evidence did not raise a reasonable doubt under W.(D.).

The court held the complainant did not subjectively consent and, in any event, any apparent consent was vitiated because the accused abused a position of trust, power, and authority over a vulnerable teenager.

A finding of guilt was entered.

The respondent father (W.F.) sought costs on a substantial indemnity basis following his successful motion for an interim variation of a parenting order, which granted him primary residency of the child E.F. The applicant mother (S.F.) opposed costs, arguing divided success and financial hardship.

The court found the respondent presumptively entitled to costs, noting the applicant's position was inconsistent with the Voice of the Child Report.

Balancing the respondent's success, settlement offers, and the applicant's ability to pay, the court fixed costs at $1,200, payable by the applicant within 120 days.

The respondent father brought a motion for interim variation of a final parenting order concerning one of three children, E.F., seeking primary residency and decision-making responsibility.

The applicant mother opposed and filed a cross-motion to dismiss the father's motion and vary the parenting order to a shared schedule.

The court found the child's current living situation untenable and that an immediate variation was necessary for the child's physical and emotional well-being, relying significantly on a Voice of the Child Report.

The father's motion was granted, providing him with primary residency and decision-making responsibility for E.F., with the mother having alternate weekend parenting time.

The mother's cross-motion was dismissed.

The court adjudicated a dispute between separated parents regarding their child E.'s school placement for Junior Kindergarten.

The applicant father advocated for a public school, emphasizing public oversight, resources, and community ties.

The respondent mother preferred a private faith-based school, prioritizing spiritual development and individualized attention.

Applying the "best interests of the child" test, the court considered factors such as the child's needs, stability, cultural heritage, school resources, and financial implications.

The court found no compelling reason for the child to attend a private school that could not be met by a public school, noting the public school's greater stability, resources, and the financial uncertainty of private tuition.

The court ordered the child to attend the public school and awarded the applicant reduced costs, emphasizing proportionality and the respondent's ability to pay.

This case involved an application for parenting time, decision-making responsibility, and child support between unmarried parents.

The applicant sought sole or joint custody with final decision-making authority and equal shared parenting time, while the respondent sought sole custody with final decision-making authority and a modified parenting schedule.

The court found the applicant's past conduct, including verbal abuse and excessive alcohol consumption, constituted family violence impacting the child's safety and well-being.

The court granted joint decision-making responsibility with the respondent having final authority on major issues, and set the child's primary residence with the respondent.

Parenting time for the applicant was adjusted to ensure the child's school attendance and meaningful time, with specific schedules for the school year and summer.

Child support arrears were calculated, and an ongoing support order was made, with adjustments for transportation costs.

The applicant sought to vary a child support order retroactively to 2017, alleging the respondent had undeclared income and had ceased payments.

The court found a material change in circumstances due to the respondent's increased income but rejected the imputation of "under the table" income due to lack of objective evidence.

Applying the D.B.S. factors, the court ordered the child support order varied retroactively to February 1, 2018, when the respondent stopped making payments, rather than the applicant's requested 2017, based on the lack of reasonable excuse for delay and the child's needs being met.

Arrears were calculated and a payment plan was set.

The respondent brought a motion seeking to declare the family law proceeding a nullity, dismiss or stay the application, and discharge a certificate of pending litigation (CPL) registered against a property.

The respondent argued the applicant lacked legal capacity due to undischarged bankruptcy and failed to make full and fair disclosure when obtaining the CPL ex parte.

The applicant presented a conflicting factual account, asserting a spousal relationship and a written agreement for property transfer, and arguing any non-disclosure was unintentional or cured by the trustee's authorization.

The court identified stark factual disputes, including significant credibility issues regarding the nature of the parties' relationship and property agreements, which could not be resolved on affidavit evidence alone.

Emphasizing that the exercise of discretionary relief under the Bankruptcy and Insolvency Act, Courts of Justice Act, and Rules of Civil Procedure must align with equitable principles, particularly against fraud, the court found it inappropriate to determine the motion without resolving these triable issues.

Consequently, the motion was adjourned to the trial judge for substantive hearing and determination, with costs reserved.

The moving party brought a motion for leave to appeal an order dated September 14, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party in the amount of $5,000.

The respondent brought a motion to change a spousal support order, seeking to terminate payments due to the applicant's re-partnering.

The applicant opposed the motion and sought retroactive spousal support arrears.

The court found a material change in circumstances due to the applicant's new committed relationship, which diminished her need-based entitlement to support.

The applicant's claim for retroactive arrears was dismissed as the respondent had complied with the existing order.

The court varied the spousal support, reducing the monthly amount and setting a future termination date, while acknowledging a modest compensatory element.

The parties separated in 2016 and had two children.

In 2019, one of the children tragically died after being accidentally run over by the respondent's truck.

The respondent brought a motion to change the existing parenting order, seeking week-about parenting time for the surviving child.

The court dismissed the motion, finding that the respondent failed to prove a material change in circumstances that would justify altering the status quo.

The court further held that, even if the threshold was met, a week-about schedule was not in the child's best interests due to the child's need for stability, the respondent's lack of respect for the applicant's role as custodial parent, and the respondent's failure to pay child support.

The applicant was granted sole decision-making responsibility and primary residence, with the respondent having alternate weekend parenting time and one mid-week visit.

The respondent was also ordered to pay child support and arrears.