Jennifer Breithaupt

Former spouses brought competing motions to vary custody, access, and support provisions of a prior divorce order.

The moving party sought joint custody, expanded parenting time, elimination of child support, and rescission of arrears, while the responding party sought restrictions on access and an order declaring the moving party a vexatious litigant.

Applying s. 17 of the Divorce Act and the test from Gordon v. Goertz, the court found no material change in circumstances justifying modification of custody or shared residence.

The court accepted that the child’s diagnosis of autism spectrum disorder constituted a material change warranting adjustments to access arrangements.

The court recalculated child support under the Federal Child Support Guidelines, fixed arrears, ordered significant costs enforceable as child support, suspended enforcement of arrears to avoid loss of the payor’s employment, and declared the moving party subject to a leave requirement for further proceedings under s. 140 of the Courts of Justice Act.

The applicant spouse sought an advance of $250,000 on a future equalization payment in ongoing family property litigation.

The court accepted that the applicant would almost certainly receive a substantial equalization payment exceeding $800,000 but held that the requested amount was not supported by evidence of a reasonable requirement for funds.

Applying the test from Laamanen v. Laamanen and related authorities, the court found the applicant had demonstrated the need for some funds to pursue litigation, including legal and expert expenses.

Exercising its discretion, the court ordered a more modest advance to level the litigation playing field while avoiding undue prejudice to the respondent’s corporate assets.

An interim advance of $50,000 on equalization was granted.

The parties were involved in an optometry practice that dissolved following the death of one of the partners.

After a 29-day trial, the trial judge found that an 'income partnership' existed, awarded damages for defamation, and made a no costs order.

Both parties appealed.

The Court of Appeal dismissed the appeal and cross-appeal, finding no error in the trial judge's conclusions regarding the nature of the partnership, the defamation findings, or the costs order.

The plaintiff was successful on an appeal from the Small Claims Court and sought costs of $5,542.99 on a partial indemnity basis.

The defendants argued the claim was excessive.

The court agreed with the defendants, noting the original damages claimed were only $4,000 and the appeal did not require extensive preparation.

Applying the factors in Rule 57.01(1) of the Rules of Civil Procedure, the court awarded the plaintiff costs fixed at $3,200 inclusive of disbursements and GST.

The defendants appealed a Small Claims Court judgment that rescinded a home renovation contract and dismissed their counterclaim.

The trial judge found the contract for a sunroom addition voidable for non-compliance with the Consumer Protection Act and rescinded it due to unfair practices.

The Divisional Court dismissed the appeal, holding that the trial judge correctly applied the law and made no palpable and overriding error of fact regarding the contract or the dismissal of the defendants' counterclaim for unjust enrichment.

The appellants requested to re-open the appeal for further argument on the correct Initial Fair Market Value date for a property.

The Court of Appeal denied the request, noting that the interpretation of the agreement regarding the valuation date was not directly addressed at trial or on appeal, but arose indirectly regarding whether an enforceable agreement existed.

The Court held that the issue of the valuation date was not central to the appeal and that the record amply supported the trial judge's finding of a valid oral agreement.

The interpretation of the agreement was left to be resolved by an arbitrator.

The appellants appealed a trial judgment finding that an oral agreement existed between the parties.

The agreement provided that the respondent would provide exclusive management services to the appellants' retirement residences in exchange for a 5% value-added equity position upon termination.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion, which was supported by objective evidence, surrounding circumstances, and the history between the parties.

The appellant estate appealed the dismissal of its claim that the respondent husband was unjustly enriched by the operation of his right of survivorship over farm properties held in joint tenancy with his deceased wife.

The Court of Appeal dismissed the appeal, finding no absence of juristic reason for the enrichment, as it arose by operation of law and was consistent with the parties' expectations to keep the farm properties together.

Arguments for a constructive trust based on wrongful conduct and proprietary estoppel were also dismissed.