Jesse Michael Schmidt

The Applicant sought full recovery costs of $297,615.08 following a successful trial where the Respondents were found to have acted in bad faith and lied under oath.

The court found that full recovery costs were warranted under Rule 24(8) of the Family Law Rules due to the Respondents' bad faith conduct, and alternatively under Rule 18(14) due to the Applicant's favourable offers to settle.

However, the court reduced the quantum of costs to $150,000, inclusive of disbursements and HST, finding the requested amount disproportionate to the financial outcome and considering the Applicant's partial success on some issues.

Both Respondents were held jointly and severally liable for the costs.

Following a successful motion for primary residence of the parties' children, the applicant sought full recovery costs of $13,882.05 based on an offer to settle and the respondent's unreasonable behaviour.

The court found the offer to settle was not severable and therefore did not attract full recovery costs under Rule 18.

While the respondent exhibited some unreasonable behaviour, it did not amount to bad faith.

Considering the respondent's impecuniosity and the principle of proportionality, the court awarded the applicant partial recovery costs fixed at $5,000, payable in monthly installments.

The applicant father brought a motion for temporary primary residence of the parties' two children and to change their school, contrary to a recent separation agreement that granted primary residence to the respondent mother.

The mother had suffered ongoing health issues and hospitalizations, leading the father to withhold the children.

The court applied the Hearn analysis to the separation agreement under the Divorce Act, finding that the agreement did not reflect the children's best interests at the time of execution due to the mother's health-related instability.

The court granted the father's motion, ordering the children to reside primarily with him and attend his proposed school.

The appellant appealed a trial judge's order awarding sole custody of the parties' twelve-year-old son to the respondent, along with ancillary orders.

The appellant raised three grounds of appeal: (1) that the trial judge failed to give proper weight to the son's expressed preferences; (2) that the trial judge's reasons were inadequate because they did not specifically refer to the factors in section 24(2) of the Children's Law Reform Act; and (3) that the trial judge misunderstood or misapplied the law relating to joint custody in parallel parenting mode.

The Court of Appeal dismissed all grounds of appeal, finding no substantiation for any of the appellant's contentions and affirming the trial judge's fact-based decision.

This costs endorsement addresses the costs of a successful motion by the Respondent, Nancy Spencer, to set aside a default judgment obtained by the Applicant, Quirino Pescarino.

Ms. Spencer sought costs on a full recovery basis, relying on her success and two unaccepted offers to settle.

Mr. Pescarino claimed his costs of the motion and wasted costs of the proceeding.

The court found Ms. Spencer entitled to her costs on a full recovery basis due to Mr. Pescarino's unreasonable refusal of her settlement offers and his failure to establish her unreasonable conduct.

Mr. Pescarino's claim for wasted costs was dismissed without prejudice to claim them at trial.

This case concerns a long-term marriage (26 years) that ended in divorce, with the applicant seeking spousal support and equalization of net family property.

The court determined that the applicant was entitled to non-compensatory spousal support, rejecting claims for contractual and compensatory support.

The court imputed an income of $47,000 per year to the applicant and calculated support at the low end of the Spousal Support Advisory Guidelines.

A review period for spousal support was ordered after three years, taking into account the applicant's voluntary withdrawal from the workforce and delay in claiming support.

The respondent's credibility was significantly questioned regarding his tax reporting and an alleged loan from his brother.

The respondent in a high-conflict family law proceeding brought a motion seeking the sale of the matrimonial home, carriage of the sale, exclusive possession, and financial disclosure.

The applicant sought an adjournment, which the court denied.

The court declined to order the immediate sale of the home or vary the existing exclusive possession order so close to trial, provided the applicant complies with a proposal to pay $20,000 monthly towards outstanding costs and $12,350 monthly for support and arrears.

The court also ordered the applicant to comply with outstanding financial disclosure requests.