James A. S. Wilcox

Decision on costs following a family law trial involving divorce and corollary relief including child support, property equalization, and the validity of a second mortgage on the matrimonial home.

The applicant was the successful party and sought full indemnity costs of $123,484.47.

The court found the respondent acted in bad faith by failing to comply with disclosure obligations despite court orders, and that the applicant's trial result met or exceeded her offers to settle.

The respondent's costs submissions improperly attempted to re-litigate the trial.

Full recovery costs of $123,484.47 were awarded, payable from the net proceeds of sale of the matrimonial home with any remainder as a debt.

Following the granting of a motion for summary judgment dismissing the applicant's spousal support claim, the respondent sought full indemnity costs.

The court considered the purposes of costs under Family Law Rule 24, including partial indemnification, encouraging settlement, and discouraging inappropriate behaviour.

Weighing the result of the motion, the respondent's offer to settle which was matched by the outcome, and the applicant's conduct which prolonged the proceedings, the court found the request for full indemnity costs of $3,457.80 to be reasonable, proportional and fair.

Following a family law trial, the court resolved disputes over separation date, equalization, child support, section 7 expenses, imputation of income, and disposition of the matrimonial home.

The court found the separation date was June 15, 2018, accepted an imputed annual income of $44,500 for support purposes, and ordered retroactive base support and section 7 contributions.

In light of disclosure failures and non-compliance, the court accepted the moving party’s net family property calculations and ordered an equalization payment.

The court vested title to the matrimonial home in the moving party, granted sole carriage and exclusive possession pending sale, and declared a registered family mortgage null and void.

Pre-judgment interest was denied.

An applicant sought possession of residential property and a declaration that respondents were trespassers.

The property had been transferred from the deceased mother to the applicant in 2010 for nominal consideration, then transferred back into joint tenancy with the mother in 2016.

The mother's will left her estate to one of the respondents.

The court found that a resulting trust arose when the mother transferred the property to the applicant, and that the applicant failed to rebut the presumption by demonstrating the mother's intent to gift the property.

The court ordered that title be transferred into the mother's name to be dealt with as part of her estate.

The applicant sought an interim variation of a parenting order to relocate two of five children (ages 11 and 13) from the respondent's primary care in Kapuskasing, Ontario to his residence in Mount Elgin, approximately 10 hours away.

The respondent opposed the relocation and sought the return of the children.

The court found that the applicant had not met the burden of demonstrating that interim relocation was in the best interests of the children.

The court dismissed the applicant's motion and ordered the return of the children to the respondent's care, finding that the applicant's use of self-help tactics and failure to follow the prescribed statutory procedure for relocation raised serious concerns about his parenting judgment.

The Crown sought a ruling on the voluntariness of a statement given by the accused, who was charged with second-degree murder.

The accused was arrested on December 23, 2022, and gave a statement to police approximately 10 hours later.

The defence challenged the voluntariness of the statement, arguing that oppressive circumstances, including fentanyl withdrawal symptoms, lack of proper caution, and police trickery, rendered the statement involuntary.

The court found that the Crown proved beyond a reasonable doubt that the statement was voluntary and admissible in evidence.

The plaintiffs commenced an action against the defendant seeking damages for breach of contract, negligence, negligent misrepresentation, and unjust enrichment.

The defendant brought a motion to dismiss or permanently stay the action.

The motion was dismissed.

The court awarded costs to the plaintiffs as the successful responding parties.

The key issue involved a forum selection clause in the contract that the defendant sought to enforce, requiring litigation to occur in Texas.

The court found that the forum selection clause did not survive the defendant's unilateral termination of the contract due to the "surviving clauses" provision not including it.

The plaintiffs were awarded partial indemnity costs of $13,000 inclusive of fees, disbursements, and taxes.

The applicant, Paul Lafortune, sought declarations and orders to enforce a 2017 agreement with the respondent, Tami Diebel, regarding the division and sale of jointly owned properties following their separation.

The court reviewed the parties' relationship history, the terms of the agreement, and the respondent's arguments against enforcement, including claims of duress and unfairness.

The court found no basis in contract or family law to set aside the agreement and granted the relief sought by the applicant, ordering the respondent to provide vacant possession of the property within 90 days.

This decision addresses the costs award following an uncontested family law trial.

The applicant sought spousal support and other benefits as per a separation agreement, which the respondent had failed to honour.

The court found the respondent was aware of proceedings but uncooperative.

Applying the principles of costs under the Family Law Rules, including indemnification, encouraging settlements, and discouraging inappropriate behaviour, the court awarded the applicant $3,000.00 in inclusive costs, finding the request reasonable given the respondent's conduct and the need for multiple motions.

The appellant, Royce Bilusak, appealed his convictions on seven counts, including mischief, theft, and breach of undertaking, stemming from a dispute with a neighbour.

The Crown conceded the appeal for four counts (two theft, two mischief related to bricks and a fence) due to a colour of right argument based on a survey, citing judicial efficiency.

The appeal proceeded on the remaining two counts: mischief for obstructing property enjoyment and breach of undertaking for attending a prohibited address.

The court dismissed the appeal on these two counts, finding no palpable and overriding error in the trial judge's factual findings, no apprehension of bias, and no misapplication of the W.(D.) test.

The court also rejected the appellant's argument that being on a city road allowance within a driveway negated the breach of undertaking, emphasizing a common-sense interpretation of the condition.

The defendant, Ferrovial Services Canada Limited, brought a motion to dismiss or permanently stay the action commenced by the plaintiffs, JLPM and Dwight Anthony Jr., in Ontario.

The motion was based on a forum selection clause (FSC) in their subcontract, which stipulated Travis County, Texas, as the exclusive venue for judicial proceedings.

The court first determined that the FSC survived the termination of the contract and was valid, clear, and enforceable.

However, the court then applied the "strong cause" test, considering factors such as the location of evidence, applicable law, parties' connections to jurisdictions, and potential prejudice.

The court concluded that the plaintiffs demonstrated "strong cause" not to enforce the FSC, primarily due to the parties' closer connection to Ontario and the application of Ontario law.

Consequently, the defendant's motion was dismissed, and Ontario was deemed the convenient forum.

The Applicant sought to relocate with the children from North Bay to Bear Island, Lake Temagami, and to vary an existing interim parenting order.

The Respondent opposed the relocation.

The court dismissed the Applicant's motion, finding that she had not met the test for varying a temporary order for relocation.

The decision emphasized the importance of maintaining the status quo in North Bay, citing the children's need for stability and the substantial reduction in contact with the father that the proposed move would entail.

The court also noted the Applicant's inconsistent positions and unilateral actions throughout the proceedings.

The applicant sought spousal support and enforcement of insurance and RRSP beneficiary designations as per a separation agreement, after the respondent failed to comply with its terms.

The matter proceeded as an uncontested trial due to the respondent's default.

The court ordered a lump sum spousal support payment, calculated based on the agreed duration and an imputed income, and mandated proof of compliance with the insurance and beneficiary designations, noting the respondent's history of non-compliance and attempts to avoid obligations.

This decision addresses multiple motions arising from a marital separation, including parenting arrangements, venue transfer, and contempt allegations.

The court declined to vary the existing temporary parenting order, finding no material change in circumstances.

It ordered the case transferred from North Bay to Haileybury, determining the children's habitual residence at separation was in Temiskaming District.

The respondent's motion to find the applicant in contempt for alleged breaches of virtual parenting time was dismissed, as the court found no intentional breach and noted the children's age-appropriate attention spans.

An Office of the Children's Lawyer (OCL) order was also made.

The accused applied for a detention review after being arrested on new charges while on a release order.

The Crown opposed release on secondary and tertiary grounds, citing the accused's criminal record, substance abuse issues, and the serious nature of the allegations.

The defence proposed a comprehensive release plan involving residence with sureties in a remote Alberta camp with strict conditions.

The court, applying the principles from R. v. Myers, R. v. Antic, and R. v. St-Cloud, found that the proposed plan met the accused's onus on both secondary and tertiary grounds.

The court emphasized the principle of restraint and the proportionality of continued detention to a realistic sentence, especially given the accused's mental health issues and time already served.

The accused was released on the proposed terms.

The plaintiff, a subcontractor, sued the general contractor, a financial corporation, and Public Works and Government Services Canada (PWGSC) for payment on a construction project.

PWGSC, later renamed The Attorney General of Canada (AGC), brought a motion to strike the Statement of Claim against it.

The court granted the motion, finding no reasonable cause of action for breach of contract, breach of trust under the Construction Act (which does not apply to the federal Crown), or unjust enrichment, due to the existence of juristic reasons (contracts between owner-contractor and contractor-subcontractor, and the comprehensive scheme of the Construction Act).

The accused sought a stay of proceedings under s. 24(1) of the Charter, alleging an infringement of his s. 11(b) right to be tried within a reasonable time.

The total delay from charge to anticipated trial completion was 37.4 months.

After deducting defence delay, the net delay was 33 months, exceeding the 30-month Jordan ceiling for Superior Court cases.

The Crown failed to rebut the presumption of unreasonableness by demonstrating exceptional circumstances or reasonable efforts to mitigate the delay.

The court found no specific link between the delay and the COVID-19 pandemic as argued by the Crown.

Consequently, the application was granted, and the charges were stayed.

The parties, Jennifer Dunford (Applicant) and Tyler Dunford (Respondent), separated in 2020.

A consent order in July 2022 set child support.

The Respondent moved to reduce child support based on a new, lower-paying job.

The Applicant cross-moved to adjust child support based on 2022 incomes and for interim spousal support.

The court addressed a procedural issue, treating the child support motions as motions to change a final order and the spousal support motion as a temporary order request.

The court determined the Respondent's income for child support based on his current, lower salary, amending the previous order.

The Applicant's motion for interim spousal support was dismissed, as she did not establish a prima facie case for relief.

The applicant sought divorce and corollary relief, including child and spousal support, and equalization.

The respondent's answer was struck, leading to an uncontested trial.

The court determined the parties' incomes, calculated child and spousal support arrears, and ordered ongoing child support and section 7 expenses.

The judgment also addressed the distribution of matrimonial home sale proceeds, including equalization payments and support arrears, and ordered the respondent to maintain extended health benefits for the children and allow the applicant to apply for children's passports without his consent.

The respondent brought a motion to reinstate his pleadings, which had been struck due to his willful and egregious failure to provide financial disclosure.

The court considered the factors for setting aside a default judgment under Rule 19.08 of the Rules of Civil Procedure.

Noting that the respondent had retained new counsel and made efforts to provide disclosure, the court emphasized the importance of having a complete evidentiary record to make accurate decisions regarding ongoing financial obligations.

The court reinstated the respondent's pleadings and ordered the parties to attend a settlement conference.