J. Mackinnon

Following a 15‑day custody and access trial, the successful party sought $493,000 in costs on a partial indemnity basis to the date of a settlement offer and full indemnity thereafter.

The court analyzed success at trial, the parties’ settlement offers, litigation conduct, and reasonableness of the claimed fees under the Family Law Rules.

The court found the moving party clearly more successful and that his settlement offers were more closely aligned with the trial outcome than the opposing party’s offers.

However, the court reduced the recovery due to unreasonable conduct, including surreptitious recording of the opposing party during disputes involving the children.

Costs were fixed at $345,000 on a partial recovery basis and ordered payable within 90 days.

Mid-trial evidentiary ruling in a family law custody and access dispute concerning the admissibility of a custody and access assessment prepared in a prior proceeding between the same parties.

The respondent argued the report was inadmissible under s. 30 of the Children's Law Reform Act.

The court held that although the report could not be admitted automatically under s. 30(9), that provision does not displace the general law of evidence.

The assessor was not prohibited from testifying and may provide factual or opinion evidence if common law expert evidence requirements are met.

However, the report itself was ordered removed from the trial record and may only be tendered when the witness testifies.

The defendants brought a Rule 21 motion to strike the plaintiff’s statement of claim alleging entitlement to a survivor’s pension following the death of her separated spouse.

The court considered the Pension Benefits Act provisions governing mandatory joint and survivor pensions and the effect of spouses living separate and apart at the relevant time.

It held that because the spouses were separated when the first pension payment became due, the statutory requirement for a joint and survivor pension did not apply and the guardian of property was entitled to elect a single life annuity for the member’s benefit.

No duty of care was owed by the Public Guardian and Trustee to the separated spouse, and the pleadings disclosed no reasonable cause of action.

The statement of claim was struck, but leave was granted to deliver a fresh claim against the pension administrator only if based on a possible mandatory plan provision requiring a joint and survivor annuity.

The Children's Aid Society sought an order for Crown wardship for the purpose of adoption for two young children.

The mother and maternal grandparents proposed competing plans for the children's return or placement.

The court found the mother had not demonstrated the necessary stability, having struggled with substance abuse and inconsistent access.

The grandparents' plan was also rejected due to their inability to set boundaries with the mother and physical limitations in managing the children.

The court ordered Crown wardship for both children but granted the grandparents supervised access, finding it would not impair future adoption opportunities.

A custody and access trial concerning a 10‑year‑old child where both parents sought sole custody and the father alternatively sought joint custody.

The court found the mother had historically managed the child’s medical and educational needs and that the father failed to cooperate with an Office of the Children’s Lawyer clinical investigation, failed to comply with prior court orders, and frequently breached access return times resulting in excessive school absences.

Joint custody was rejected due to the parties’ inability to communicate and ongoing conflict.

Sole custody and primary residence were granted to the mother, with the father receiving modified access that removed overnight visits on school nights.

Child support of $100 per month, including section 7 contributions, was ordered and costs of $12,000 were awarded against the father.

Following a nine‑day trial in which the plaintiffs’ action was dismissed, the defendants and the third party sought costs.

The defendants requested substantial indemnity costs based largely on allegations of fraud advanced against them and an unaccepted settlement offer made in related litigation.

The court held that the offer made in the separate main action was irrelevant to the costs of the present case and declined to award recovery of unrecovered costs from that action.

However, because the plaintiffs advanced serious allegations akin to fraud that were ultimately unfounded, the court awarded the defendants solicitor‑and‑client scale costs.

The third party was awarded partial indemnity costs to the date of her offer to settle and substantial indemnity costs thereafter, reflecting that her offer was more favourable than the result obtained at trial.

Following a family law trial concerning spousal support and contractual issues, the successful party sought costs after serving an Offer to Settle that was more favourable to the opposing party than the ultimate trial award.

The court considered Family Law Rule 18(14) and the time‑computation provisions of Family Law Rule 3(1) in determining whether the offer was served at least seven days before trial.

Applying the rule for counting days and drawing guidance from Rule 3.01 of the Rules of Civil Procedure, the court held the offer satisfied the timing requirement.

Even if it had not, the court would exercise discretion under Family Law Rule 18(16) to award elevated costs given the significant disparity between the offer and the trial outcome.

The respondent was awarded $48,500 in costs inclusive of fees, disbursements, and HST.

A high-conflict custody trial concerning three teenage children where each parent alleged parental alienation by the other.

The applicant mother sought sole custody of all children and suspension of the father’s access pending therapeutic intervention.

The respondent father sought sole custody of two children and joint custody of the third.

The court accepted the assessor’s opinion that the case was a “mixed” alienation scenario involving problematic parenting behaviour by both parties rather than pure parental alienation by one parent.

Given the children’s ages, experiences with each parent, and entrenched conflict, the court declined to change residential custody as requested and instead structured a divided custody arrangement combined with extensive therapeutic intervention and detailed parenting orders designed to repair parent‑child and sibling relationships.

The respondent sought to set aside a marriage contract and subsequent separation agreement under s. 56(4) of the Family Law Act, or alternatively obtain spousal support under s. 15.2 of the Divorce Act despite contractual waivers.

The court found no material financial non-disclosure but concluded that the spousal support waivers in both agreements were obtained through undue influence and misrepresentation and were improvident in light of the parties’ circumstances.

The property provisions of the agreements were upheld, but the spousal support waivers were set aside.

Applying the Miglin framework, the court determined the agreements did not substantially comply with the objectives of the Divorce Act.

The respondent was awarded lump-sum and ongoing periodic spousal support.

The plaintiffs purchased a commercial plaza that was contaminated with PCE from a former dry cleaning business.

They sued the vendor for fraudulent misrepresentation, alleging the vendor concealed environmental reports showing the contamination.

They also sued their real estate lawyer for professional negligence, alleging she failed to obtain the reports or properly advise them regarding the environmental condition.

The court dismissed the action against all defendants.

The court found as a fact that the vendor had provided the environmental reports to the purchaser before the environmental condition was waived.

The court also found that the lawyer met the standard of care, as the purchaser had taken responsibility for satisfying the environmental condition and had instructed her to waive it after receiving the reports.

During an ongoing family law trial, the applicant sought to call two witnesses in reply concerning a child's mental health events and communications that emerged from late-produced emails.

The court considered the principles governing reply evidence, including whether the evidence addressed new matters arising from the defence or whether it constituted impermissible splitting of a party’s case.

The court held that limited reply evidence from the child’s therapist was permissible regarding specific events in June–July 2011 and related emails that gained new significance during the defence case.

However, broader inquiries into the child’s ongoing mental health and alleged information‑withholding could have been addressed in the applicant’s case in chief and were therefore excluded.

The proposed testimony of the guidance counsellor was not proper reply evidence, and the applicant’s request to reopen her case in chief was denied.

The applicant sought costs following a contested family law motion, requesting full recovery costs of $33,539 or alternatively partial recovery costs of $22,136.

The respondent argued that a clause in a Partial Interim Separation Agreement barred any costs award or, alternatively, that costs should be limited to a substantially lower amount.

The court held that the contractual clause requiring each party to pay their own legal and professional fees did not waive the applicant’s right to seek a judicial award of costs.

Finding the applicant to be the successful party and noting that an offer to settle engaged full recovery entitlement for part of the proceeding, the court reduced the claimed amounts due to excessive hourly rates, duplication of work, and unnecessary attendance by multiple counsel.

Costs were fixed on an all‑inclusive basis.

The applicant sought spousal support under s. 15.2 of the Divorce Act despite a prior separation agreement providing for mutual spousal support releases in exchange for her receiving the respondent’s share of condominium equity.

Applying the two‑stage framework in Miglin v. Miglin, the court accepted that the agreement was properly negotiated but considered whether subsequent circumstances justified departing from it.

The court found that the applicant’s severe and chronic mental health deterioration after the agreement represented a significant departure from the circumstances reasonably contemplated when the agreement was executed, undermining the assumption that she would remain self‑sufficient.

Although the agreement retained weight given the objectives of finality and certainty, strict enforcement would not adequately address the applicant’s economic hardship.

Considering the Spousal Support Advisory Guidelines and the lump sum already received, the court ordered an additional lump sum spousal support payment.

The respondent moved to bifurcate a family law trial to determine custody, support, and the validity of a marriage contract before addressing equalization of net family property.

The applicant opposed and sought extensive financial disclosure, arguing the issues of property division and spousal support were interrelated.

The court held that the validity of the marriage contract and spousal support analysis under Miglin require knowledge of the parties’ financial positions at separation.

Because property equalization must precede spousal support and the issues were intertwined, bifurcation would risk prejudice and inefficiency.

The motion for bifurcation was dismissed and the respondent was ordered to provide full financial disclosure regarding assets and liabilities at separation.

In a family law proceeding involving allegations of parental alienation, the court conducted a voir dire to determine the admissibility of proposed expert evidence from a developmental psychologist retained to provide a generic report on parental alienation theory.

Applying the admissibility framework from R. v. Mohan and the two‑stage analysis articulated in R. v. Abbey, the court considered necessity, reliability, and the balance between probative value and potential prejudice.

The court concluded that limited portions of the expert’s report explaining common alienating strategies and behaviours of alienated children would assist the trier of fact.

However, other portions—including general discussions of prevalence, cult analogies, therapeutic practices, and proposed remedial solutions—were excluded as lacking sufficient relevance or probative value.

The expert was also prohibited from answering fact‑based hypothetical questions because the retainer was limited to providing generic educational evidence rather than case‑specific opinions.

During a custody and access trial, the applicant brought a motion seeking to redact portions of a custody assessor’s notes, records, and report that referenced communications from a prior closed mediation.

The applicant argued that mediation privilege had not been clearly waived when she consented to the assessor obtaining information from the mediator.

The court found that the applicant knowingly signed a release permitting disclosure to the assessor and understood that information provided to the assessor could be disclosed in court under the assessor’s retainer terms.

The court further held that the applicant impliedly waived mediation privilege by later providing submissions discussing the mediation for the assessor’s consideration.

Given the parties’ consent and the potential prejudice to the integrity of the assessment if extensive redactions were allowed, the motion to redact was denied.

Following a seven‑day family law trial concerning custody, relocation, child support, and access, both parties sought full recovery costs.

The court found that success at trial was clearly divided: the applicant obtained sole custody, income imputation, and child support, but failed on her late‑raised request to relocate the child to Nova Scotia, while the respondent succeeded in maintaining the child’s residence in Ontario and obtaining a graduated access regime but failed on other financial and custody claims.

The court also found litigation misconduct by the respondent, including failure to pay child support despite sufficient income and inadequate financial disclosure.

However, the applicant’s late and inadequately supported mobility claim was central to the trial and undermined her entitlement to costs.

Balancing the divided success and litigation conduct, the court declined to award costs to either party.

The court determined costs following the dismissal of a respondent’s motion seeking an order that funds be paid into court pending determination of his claim.

Although the applicant was successful on the motion and sought approximately $17,000 in costs, the court found that her conduct regarding disclosure contributed to the procedural complications and delays.

The court noted that significant disclosure should have been provided voluntarily and that the applicant had incorrectly denied receiving certain disclosure.

Considering the circumstances, the court declined to award full indemnity costs and fixed costs at $6,000 to the applicant and $500 to her mother.

The court also cautioned counsel that written submissions must always be shared with opposing counsel.

The court determined costs following a family law motion and cross‑motion concerning child and spousal support and the potential sale of the matrimonial home.

The applicant was found to be the successful party, having obtained support orders and resisted the respondent’s request for sale of the home, although the respondent achieved limited success on certain expense issues.

The court considered the parties’ offers to settle and found the applicant’s offer more closely aligned with the ultimate outcome.

While the applicant sought $18,500 in costs, the court found the hourly rate and some claimed work excessive in light of the issues and the reasonable expectations of the opposing party.

Costs were fixed at $15,000 on a partial recovery, all‑inclusive basis payable within 60 days.

The applicant mother sought sole custody, permission to relocate to Nova Scotia with the parties' two-year-old child, and child support.

The respondent father sought joint custody, opposed the relocation, requested increased access, and claimed undue hardship regarding child support.

The court awarded sole custody to the mother, finding a lack of cooperation and trust between the parents.

The relocation request was denied as the mother's plan was hastily formed and lacked concrete employment prospects, while the child's relationship with the father needed to be facilitated in Ottawa.

The court ordered a graduated access schedule for the father, imputed income to him for child support purposes, and dismissed his claim for undue hardship.