John E. Summers

This is a costs endorsement following a family law trial.

The applicant was largely successful on the issues litigated, including parenting time, decision-making responsibility, and restrictions on the respondent's attendance at the applicant's residence.

The respondent prevailed on certain travel-related issues.

The court awarded costs to the applicant on a partial indemnity basis, apportioning the award to reflect the divided success and the difficulty in determining time allocation across contested issues.

The parties separated in 2019 after a six-year relationship.

The applicant mother moved to Ottawa with the child in 2020 to pursue employment and education, while the respondent father remained in Cobden to work as a dentist.

Following a trial, the court ordered joint decision-making responsibility and primary residence with the mother, with a detailed parenting schedule for the father.

The court found the mother entitled to compensatory spousal support due to her role as primary caregiver while the father attended dental school, ordering $4,000 per month for four years.

The court also imputed an annual income of $24,000 to the mother while she pursued her master's degree, and ordered her to pay an equalization payment and post-separation adjustments for the matrimonial home.

The plaintiff, widow of the deceased, challenged the validity of her late husband's will, sought an equalization payment under the Family Law Act, and dependant support under the Succession Law Reform Act.

The defendant, the deceased's daughter and estate trustee, defended the will's validity and disputed the equalization and support claims.

The court found the will valid, dismissed the support claim, and provided findings for the calculation of the equalization payment, leaving the final amount for the parties to agree upon.

This divorce proceeding addressed child support, section 7 expenses for a child with special needs, and equalization of net family properties.

The court imputed an annual income of $70,000 to the respondent for child support purposes, finding his reported income inaccurate and his underemployment intentional.

The court also found the applicant's claim for the cost of two caregivers for the child to be a reasonable and necessary section 7 expense, to be shared proportionately.

Regarding property equalization, the court determined that a property in Bangladesh, though titled in the respondent's name, was a gift from his father and thus excluded from his net family property.

The respondent's claim for an unequal division of net family properties, based on alleged pre-separation debt, was dismissed due to insufficient evidence.

The parties were directed to finalize net family property calculations based on the court's findings.

The Respondent sought leave to bring a motion alleging the Applicant committed various crimes and abused court process, seeking recognition as a victim of family violence, and other relief.

The court denied leave, finding the relief sought frivolous, vexatious, an abuse of process, and beyond the court's jurisdiction in a family law proceeding.

The court also noted the Respondent's history of non-compliance with disclosure orders and unpaid costs, and granted the Applicant leave to proceed with a motion to strike pleadings and a motion to declare the Respondent a vexatious litigant.

Costs were awarded to the Applicant.

The respondent, Ross McHardy, brought a motion to terminate his spousal support obligation to the applicant, Cheryl McHardy, citing his retirement, age (over 70), and significant health issues after 16 years of payments following a 29.5-year cohabitation.

The applicant acknowledged the material change but sought continued reduced support.

The court found that Mr. McHardy's retirement constituted a material change in circumstances.

Considering the parties' comparable financial circumstances, including their incomes and roughly similar net worth, and Mr. McHardy's age and health, the court terminated the spousal support obligation effective January 1, 2021, concluding that Ms. McHardy had not demonstrated a need for continued support and that compensation had been achieved.

This trial decision addressed the sole remaining issue of a parenting plan for three daughters following the parents' separation.

The court considered the children's best interests, including their views (obtained through a judicial interview with the eldest child), the parents' differing parenting styles, and the history of care.

The mother was granted primary care and final decision-making authority for medical and educational matters, with joint decision-making for major extracurricular activities and religious upbringing.

The father was granted increased, but not equal, parenting time, including specific regular and holiday schedules.

The court emphasized the need for both parents to improve communication and cooperation.

Following a lengthy family law trial regarding parenting and child support, both parties sought costs.

The mother sought $65,655.63 and the father sought $114,575.22.

The court declined to award costs to either party.

Although the mother was more successful at trial and made offers to settle, her egregious conduct—including denying parenting time, breaching court orders, lying under oath, and fabricating evidence—disentitled her to costs.

The father was also denied costs due to his unreasonable conduct, including amending his pleadings late to seek primary care and refusing to engage in settlement discussions.

The applicant father sought to vary a 2015 parenting order to grant him primary care and sole decision-making responsibility of the parties' nine-year-old child, alleging the respondent mother engaged in parental alienation and unilaterally suspended his parenting time.

The mother sought to maintain the status quo and requested retroactive child support.

The court found both parties lacked credibility, noting the mother fabricated text message evidence and the father failed to exercise consistent parenting time or pay proper child support.

The court concluded it was in the child's best interests to remain in the mother's primary care with sole decision-making responsibility, subject to strict consultation requirements, while granting the father increased, regular parenting time.

The father was also ordered to pay $9,414 in child support arrears.

The mother brought an urgent motion seeking to have the parties' eight-year-old daughter returned to her full-time care before the start of the school year.

The daughter had been living with the father since June on what the mother claimed was a temporary basis.

The court found no urgency, noting the mother failed to establish the placement was temporary and that the impending sale of the matrimonial home created uncertainty about the daughter's future school district.

The motion was dismissed, and the daughter was ordered to remain in the father's care on an interim basis pending involvement of the Office of the Children's Lawyer.

Following a trial where the applicant's request for sole custody and relocation was dismissed, the successful respondent sought costs of $15,000.

The applicant argued that no costs should be awarded given the nature of the family law dispute.

The court applied the presumption under Rule 24(1) of the Family Law Rules that a successful party is entitled to costs, noting the respondent's offer to settle matched the trial outcome.

The applicant was ordered to pay the respondent's costs fixed at $15,000.

The applicant mother sought sole custody and permission to relocate with the parties' six-year-old child from Brockville, Ontario to Jasper, Alberta.

The respondent father opposed the move and sought joint custody with the child remaining in Brockville.

The court applied a blended approach to the custody and mobility issues, considering the proposed relocation as part of the best interests analysis.

Finding that the child had a strong bond with both parents and the paternal extended family in Brockville, and that the mother's employment and housing plans in Alberta were uncertain, the court concluded the child stood to lose more from the move than she would gain.

The application to relocate was dismissed, and joint custody was ordered with shared parenting if the mother remained in Brockville.

The applicant mother brought a motion to set aside a previous order granting her temporary sole custody and to establish primary residence and school enrollment for the parties' four-year-old child.

The respondent father sought interim equal timesharing and for the child to remain at his current school.

The court set aside the previous order, finding that the status quo prior to the mother unilaterally terminating access was an equal timesharing arrangement.

The court ordered temporary joint custody and equal timesharing, and directed that the child remain at his current school to minimize disruption.

The issue of child support was adjourned.

The applicant father sought increased access, including overnight, for his two children (Ryan, 4, and Liam, 18 months), and to continue mid-week access.

The respondent mother opposed overnight access, citing Ryan's special needs (autism) and the father's health/lifestyle concerns.

She also sought temporary custody, child support, s. 7 expenses, and income imputation.

The court granted the mother interim sole custody and primary residence by consent.

The court found it in the children's best interests to have more meaningful, gradually increasing parenting time with the father, including eventual alternate weekend overnights.

The court ordered retroactive child support based on the father's 2018 income and proportionate sharing of future daycare costs for Liam.

The mother's request to impute income was declined for the interim motion due to insufficient evidence and late disclosure.

The father was also ordered to maintain life insurance as security for child support.

The Applicant mother sought costs following a successful motion where the court ordered the children to attend her proposed school.

The Respondent father opposed, arguing his school proposal was reasonable and the mother's claimed costs were excessive for a single-issue motion.

The court awarded the mother $3,000 in costs, finding her to be the successful party and her offer to settle reasonable, while noting the father's failure to respond to a draft order and assessing the proportionality of the amount claimed.

This urgent motion addressed a dispute between separated parents with joint custody regarding the school placement for their two children, Sophia (11) and Osker (almost 9), for the upcoming academic year.

Neither parent resided within the catchment area of the children's current school.

The mother proposed Sophia attend Emily Carr Middle School and Osker attend Good Shepherd Catholic School, while the father proposed both children attend Chapel Hill Catholic School.

The court, applying the best interests of the child test under the Children's Law Reform Act, sided with the mother's proposal, emphasizing Sophia's anxiety and need for stability, the minimization of parental conflict through neutral pick-up/drop-off locations, and the mother's proactive role in addressing the children's special needs.

The respondent father sought costs after successfully obtaining summary judgment, which dismissed the applicant mother's motion to change parenting and spousal support provisions.

The court found the mother's motion to vary lacked merit, was an attempt to re-litigate issues previously decided after an eleven-day trial, and constituted an unreasonable initiation of proceedings.

Considering the father's bill of costs, which was slightly reduced to account for attendance at initial appearances and case conferences related to other matters, the court ordered the mother to pay $5,000 in costs.

The respondent father brought a motion for summary judgment to dismiss the applicant mother's motion to change a final divorce order concerning parenting, child support, and spousal support.

The court found no material change in circumstances justifying a variation of the parenting provisions or the duration of spousal support, dismissing those aspects of the mother's motion.

The father was granted leave to file a response to the motion to change to address the yearly review of child and spousal support quantum.

The respondent mother brought a motion for temporary child support, spousal support, and an interim disbursement.

The applicant father had sought to decline jurisdiction and return the children to Egypt, but his application was adjourned.

The court found it had jurisdiction to order interim child support under the Family Law Act, as the Egyptian divorce did not address it and the children had a substantial connection to Ontario.

The court also found it had jurisdiction for spousal support because the Egyptian divorce was not recognized under the Divorce Act.

The court imputed an annual income of $250,000 to the father due to voluntary underemployment and lack of financial disclosure.

An interim disbursement of $4,000 was ordered for the mother's expert witness fees, applying the less stringent family law criteria for advance costs.

The parties sought costs following several motions, including an urgent motion without notice brought by the applicant to allow the children to attend their grandfather's funeral, and a subsequent motion where success was divided on issues of parenting time, sale of the matrimonial home, and a section 30 assessment.

The court found that success was divided on the main motion and neither party beat their settlement offers, resulting in no costs being awarded for those appearances.

However, the court awarded the applicant costs on a substantial indemnity basis for the urgent motion, finding the respondent's refusal to allow the children to attend the funeral was unreasonable.

The respondent was ordered to pay $1,725.79 in costs.