John Allan

The moving party brought a motion for leave to appeal an interlocutory parenting order.

The Divisional Court dismissed the motion for leave to appeal.

No costs were ordered as the responding party did not make submissions on costs.

In a family law proceeding, both parties brought motions for disclosure and for the partition and sale of the jointly owned matrimonial home.

The court ordered the respondent to provide daycare provider contact information and to request hospital records relating to alleged family violence, subject to a Wigmore analysis.

The applicant was ordered to disclose correspondence sent to third parties concerning the respondent and to provide a will-say statement detailing his claim for intentional infliction of mental suffering.

The court also set the terms for the listing and sale of the matrimonial home, ordering it to be listed for $350,000 with the net proceeds to be held in trust pending further order.

This costs endorsement addresses a motion regarding parenting time and the appointment of the Office of the Children’s Lawyer (OCL).

The court found that success on the motion was divided: parenting time was reinstated, but the OCL was not appointed.

The court also addressed outstanding child support and ordered immediate payment to the Applicant.

Given the divided success and the circumstances, no costs were awarded.

This endorsement addresses a motion regarding parenting time between Kristen McElroy (mother) and Ryan Andrew Spence (father) for their six-year-old child, Bryson McElroy.

The court reviews the parties’ parenting history, the mother’s unilateral changes to the father’s access, and allegations of substance abuse.

The court finds no evidence to justify supervised parenting time for the father and restores his regular access, emphasizing the child’s best interests and the need for cooperative co-parenting.

The court also orders the father to pay outstanding child support directly to the mother and provides directions for resolving costs.

This endorsement addresses cross-motions for interim relief in a family law matter involving parenting, mobility, child support, and matrimonial home issues.

The applicant sought interim custody, a move-back order for the children from Saskatchewan to Ontario, and transfer of the matrimonial home deed, among other things.

The respondent sought interim decision-making, virtual parenting time, child support, and partition and sale of the matrimonial home.

The court declined to grant most temporary relief, finding that the complex issues, including significant credibility and mobility concerns, required a full trial.

The court ordered the applicant to commence child support payments, mandated communication via an online parenting application, and required the applicant to provide evidence of his ability to buy out the respondent's interest in the matrimonial home.

The court emphasized the need for case management to prepare the matter for trial, particularly regarding the children's best interests given their relocation to Saskatchewan.

The Children's Aid Society of Ottawa brought a motion for summary judgment seeking to place the child, K, in the custody of her paternal great-grandmother, D.L., pursuant to section 102(1) of the Child, Youth and Family Services Act (CYFSA).

K's parents, E.K. (Mother) and O.K. (Father), opposed the motion, while D.L. supported it.

The court granted the Society's motion, finding that the parents had not made significant progress to address protection concerns since a previous order, and that it was in K's best interest to remain in D.L.'s care, ensuring a safe, stable environment and continuity of care, especially given K's serious medical needs.

This is a costs endorsement following a motion where the applicant father's motion for the return of a child was dismissed, and the respondent mother's cross-motion, asserting the child's habitual residence in Ghana and declining Ontario's jurisdiction, was granted.

The court awarded the respondent mother $7,000.00 in costs, inclusive of HST and disbursements, payable by the applicant father within 90 days.

The court considered the Family Law Rules and the parties' submissions, finding no bad faith on either side but emphasizing that surreptitious child removal is not condoned.

The applicant father brought a motion requesting the return of the child, alleging the respondent mother wrongfully removed the child from Ottawa to Ghana.

The mother requested an order declaring the child's habitual residence as Ghana and that the Ontario court decline jurisdiction.

The court applied the hybrid approach to determine habitual residence under section 22 of the Children's Law Reform Act.

Finding that the child had lived in Ghana for almost her entire life and only spent 35 days in Ottawa, the court concluded the child's habitual residence was Ghana.

Furthermore, the court held that even if the habitual residence was Ontario, it would decline jurisdiction under section 25 of the Act, as Ghana was the more appropriate forum.

The Respondent mother brought a motion challenging Ontario's jurisdiction to determine parenting issues for her child, Alessa, arguing Nunavut was the proper forum.

The court found that the child's habitual residence remained Nunavut, as the mother's trip to Ottawa with the child was exploratory and not a permanent relocation.

The Applicant father's unilateral withholding of the child was deemed a tactical self-help remedy that did not alter the child's habitual residence.

The court dismissed the Applicant's claim to jurisdiction, ordered the immediate return of the child to the Respondent, and directed police assistance if necessary for the child's return to Nunavut.

The respondent father sought to vary a 2016 final order regarding parenting time, alleging a material change in circumstances due to the children's aging and the mother's alleged withholding of time.

The applicant mother opposed, citing the father's unresolved addiction issues and arguing no material change.

The court found that the children's significant aging (from very young to 5 and 8 years old) constituted a material change.

The court granted a temporary, without prejudice variation to increase the father's parenting time, including overnights, but requested the Office of the Children's Lawyer to ascertain the children's views before a final order.

The mother's cross-motion was dismissed.

The court also addressed child support, finding insufficient evidence to impute income to the father but granting the mother leave to return on the issue.

The applicant mother sought to schedule an urgent motion for the return of the parties' 15-year-old child, who was currently residing with the respondent father in Alberta.

The father had commenced legal proceedings in Alberta, and the parties disputed whether Ontario or Alberta had jurisdiction.

The triage judge dismissed the request for an urgent motion, finding that the delay since the father's refusal to return the child in August 2020 negated the urgency, and that the motion appeared to be a strategic race to obtain a court order.

The court directed the parties to address the jurisdictional issue at a case conference.

The applicant father brought an urgent motion seeking the return of his two children from Nova Scotia to Ontario and joint custody.

The respondent mother had unilaterally moved with the children to Nova Scotia following a physical separation.

The court determined that the children's habitual residence was in Nova Scotia, where they were born, had extended family, and had previously received support services.

The court declined to exercise jurisdiction, finding that the Nova Scotia court, which had already granted an interim ex parte order, was the appropriate forum.

The court determined the costs of an appeal regarding a motion to change custody and access.

The applicant/respondent on appeal sought costs on a full indemnity basis, relying on a written offer to settle.

The respondent/appellant argued against costs, citing delay and partial success.

The court found the applicant was substantially successful but noted the respondent achieved partial success.

Costs were awarded to the applicant on a partial indemnity basis in the amount of $1,280.00.

The appellant, M.D., appealed an order from the Ontario Court of Justice that struck his Response to Motion to Change and directed an uncontested trial.

The original order was made due to M.D.'s repeated non-compliance with court orders, including non-payment of costs and failure to provide documents.

The Superior Court of Justice, on appeal, applied a three-pronged test for striking pleadings, finding that a triggering event occurred and striking the pleadings was appropriate given the history of non-participation.

However, the motion judge erred by not considering other remedies, particularly in a case involving the best interests of a child.

The appeal was allowed in part, reinstating the matter for trial but with M.D.'s pleadings remaining struck.

M.D.'s participation was limited to cross-examination of the respondent's witnesses and final submissions, and he was prohibited from bringing pre-trial motions without leave.

In a motion to change a final order concerning parental access to a child, the respondent failed to comply with a court order requiring payment of $500 toward accumulated costs awards totalling $3,500.

The respondent also failed to produce the child's birth certificate and health card as ordered.

The court struck the respondent's pleadings under Family Law Rules 1(8)(c) and directed an uncontested trial to proceed, finding the respondent's non-compliance demonstrated contempt for the court process and a lack of commitment to meaningful participation in the proceedings.

The court considered costs following a 16-day trial concerning custody of and access to a child.

Both parties sought full recovery of costs, alleging unreasonable behaviour by the other.

The court found divided success, noting the applicant was successful in obtaining generous unsupervised access, while the respondent had greater success on ancillary issues.

Neither party's offer to settle was found to be more favourable than the final order.

Despite some unreasonable behaviour from both sides and the applicant's failure to comply with disclosure, the court was not persuaded that the applicant's actions constituted bad faith under Rule 24(8) of the Family Law Rules.

Considering all factors, including the divided success and the proportionality of costs, the court determined that no costs should be awarded to either party.

This costs endorsement relates to an unsuccessful motion brought by the respondent to stay the enforcement of a temporary order concerning parenting arrangements, pending an appeal.

The court applied the general rule that costs follow the event, finding no compelling reasons to depart from this practice.

Consequently, the applicant, as the successful party in the underlying motion, was awarded partial indemnity costs.

The applicant sought an interim order for custody of the child, N., following a prior final order granting custody to the respondent.

The applicant had previously struggled with substance abuse but had successfully rehabilitated herself, completed treatment programs, obtained stable employment, and was in a supportive relationship.

The respondent had failed to meaningfully participate in the proceedings, had denied access to the applicant for an extended period, and the child had experienced significant neglect including excessive school absences, poor dental hygiene, and developmental concerns.

The court granted interim custody to the applicant, finding it was in the child's best interest, while maintaining the respondent's access rights on a structured basis.

This costs endorsement followed a decision granting the Respondent Father's motion for summary decision, dismissing the Applicant Maternal Aunt's application for custody, access, and child support due to lack of Ontario jurisdiction.

The Respondent, as the successful party, sought full indemnity costs of $10,041.86.

The Applicant argued her actions were reasonable, in the children's best interests, and cited her inability to pay as she receives social assistance.

The court, applying Rule 24 of the Family Law Rules, found the Applicant's pursuit of the application reasonable given the circumstances (no active Quebec proceedings, children residing in Ontario, Respondent's prior withdrawal from children's lives).

While acknowledging the Respondent's success, the court exercised its discretion to fix costs at a significantly reduced amount of $1,500, inclusive of HST and disbursements, considering the Applicant's good faith, caregiving role, and financial hardship, deeming a full indemnity award overly punitive.

The respondent father brought a motion for summary decision to dismiss the applicant maternal aunt's application for custody and access on the basis that Ontario courts lacked jurisdiction.

The children were habitually resident in Quebec and had been subject to custody orders from the Quebec courts.

Following the death of the mother, the maternal aunt sought custody in Ontario.

The court found that the children had no real and substantial connection to Ontario and that Quebec was the most appropriate forum to determine custody and access.

The motion was granted and the application was dismissed.