John G. Cox

This endorsement addresses costs arising from a December 13, 2023 motion where the Applicant mother sought leave to file fresh evidence in an appeal of an arbitration award concerning children's schooling.

The mother was substantially successful on her motion, obtaining leave to file evidence from one therapist and an updated Voice of the Child report, while her request for evidence from a parenting coordinator was dismissed.

The Respondent father's cross-motion was dismissed.

The court found the mother entitled to costs, but not full recovery, due to issues with proportionality and the use of multiple counsel.

The father was ordered to pay $15,000.00 in costs to the mother.

This is an appeal of an arbitration award that changed the children's school from a private institution to a public one due to financial considerations.

The appellant mother alleged errors of law, fact, mixed fact and law, and procedural unfairness by the arbitrator, including failure to give due weight to the children's views, prioritizing finances over best interests, insufficient reasons, judicial notice errors, misapprehension of evidence, and procedural unfairness regarding financial disclosure.

The court dismissed the appeal, finding no palpable and overriding errors or errors of law, and upheld the arbitrator's decision, emphasizing deference to arbitral awards in family matters and the holistic consideration of the children's best interests within practical and financial constraints.

The applicant mother brought a motion seeking leave to adduce fresh evidence on her appeal of an arbitration award that ordered the parties' two children to change schools.

The mother sought to introduce evidence from the children's therapist and the parenting coordinator, which the arbitrator had previously refused to hear, as well as an updated Voice of the Child report.

Applying the Palmer test with the flexibility required in family law cases involving the best interests of children, the court allowed fresh evidence from the therapist and ordered an updated Voice of the Child report to ensure the appeal judge has current information.

The request to adduce evidence from the parenting coordinator was dismissed.

The applicant brought a motion seeking exclusive possession of the matrimonial home, primary residence and sole decision-making for the children, and supervised parenting time for the respondent.

The court noted highly conflicting and untested affidavit evidence regarding serious allegations of abuse and parenting.

The court ordered a Section 30 assessment to be conducted by a psychologist or psychiatrist.

Pending the assessment, the court ordered temporary-temporary nesting arrangements for the matrimonial home, a specific shared parenting schedule with the children's nanny present during the respondent's time, and general communication rules.

The court declined to make findings on most allegations due to conflicting evidence but noted concerns regarding the respondent's anger management and inappropriate communication about the youngest child, which influenced the temporary parenting plan.

The applicant mother sought joint custody, parallel decision-making, and equal parenting time of the parties' 10-year-old child.

The respondent father sought sole custody and decision-making responsibility, with the child spending 5 out of 14 days with the mother, along with therapeutic interventions.

The court found that the mother engaged in egregious post-separation conduct, including making unfounded allegations of physical and sexual abuse against the father, which caused emotional harm to the child and raised significant concerns of parental alienation.

Relying on expert assessments, the court concluded that the mother was unable to co-parent and that her hostility towards the father remained unresolved.

The court awarded sole decision-making responsibility and primary residence to the father, limited the mother's parenting time to 5 out of 14 days, and ordered therapeutic supervision for the mother.

This is a costs endorsement following a successful motion by the respondent to reduce his spousal support obligations due to the catastrophic impact of the COVID-19 pandemic on his employment as a pilot.

The court had previously granted an interim order reducing support and requiring the applicant to repay overpayments.

In this costs decision, the court found the respondent to be the successful party, as both the financial disclosure and support reduction issues were decided in his favour, despite not receiving the full extent of his requests.

Considering the parties' conduct, settlement offers (respondent made offers, applicant did not on the main issue), and the proportionality of legal fees, the court awarded the respondent $45,000.00 in costs, plus taxes and disbursements, to be paid in installments after the spousal support overpayments are repaid.

The moving party, an airline pilot, sought a temporary-temporary reduction in his spousal support obligations due to the catastrophic impact of the COVID-19 pandemic on the airline industry and his income.

The original support order stipulated that support was fixed and non-variable unless there was a catastrophic change in his employment circumstances.

The court found that the moving party established a strong prima facie case for a material change in circumstances, hardship, and urgency.

The court granted the motion, reducing the monthly spousal support obligation from $10,283.00 to $6,738.00, retroactive to October 1, 2020.

This decision addresses the issue of costs following a 9-day trial where the applicant, Joan Ann Mary Fox, was largely successful in her claims for spousal and child support arrears.

The court found the respondent, James Henry Fox, acted in bad faith due to extensive financial non-disclosure, deliberate destruction of business records, and causing extraordinary delay in the litigation.

The respondent's offers to settle were deemed unreasonable, partly because they did not include costs and were made without adequate financial disclosure.

Consequently, the applicant was awarded costs on a full recovery basis, subject to minor adjustments for duplication of counsel work, travel time, previous counsel's fees, and a small amount for the respondent's limited success on four minor issues.

The applicant father sought sole custody, an unequal division of net family properties, and $2 million in damages against the respondent mother for child abuse and neglect.

The mother's pleadings had been struck years prior due to the failures of her litigation guardian.

At the uncontested trial, evidence revealed the mother suffers from severe intellectual deficiencies and mental illness.

The court declined to issue a final judgment immediately, raising concerns that the mother's litigation guardian failed to appropriately protect her interests.

The court requested submissions from the father on whether the Office of the Public Guardian and Trustee should be appointed to represent the mother before proceeding further.

In additional reasons following a family law trial, the court resolved four outstanding issues regarding spousal support arrears.

The court confirmed the adjusted support commenced on the date of the application, accepted the parties' agreement on pre-judgment interest, and determined the net after-tax spousal support owing was $666,000 by factoring in the tax deductions for legal fees actually utilized by the applicant.

The court dismissed the applicant's claim for lost RRSP savings as speculative and not advanced at trial.

At the commencement of a family law trial, the respondent father sought to introduce bank records as proof of his payment of section 7 expenses.

The records had not been previously disclosed, despite a prior court order requiring their production within 60 days.

The court refused to admit the documents, finding that their late disclosure amounted to trial by ambush, prejudiced the applicant mother's trial preparation, and formed part of a pattern of non-disclosure by the respondent.

Following a 22-year marriage, the applicant sought spousal support, retroactive child support, and remedies for spoliation of evidence and civil contempt.

The court found the applicant entitled to spousal support on both compensatory and non-compensatory grounds, refusing to impute full-time income to her.

The court included the respondent's significant post-separation income increases in the support calculation, ordering indefinite spousal support of $16,734 per month.

The court also ordered a retroactive adjustment for child and spousal support.

Furthermore, the court drew an adverse inference against the respondent for intentionally destroying business records (spoliation) and found him in civil contempt for selling a property in breach of a court order, imposing a $10,000 penalty.

The Applicant sought full indemnity costs for various attendances concerning child custody and access, alleging the Respondent's abusive behaviour and unreasonableness.

The Respondent opposed, seeking costs for one attendance and no costs for others, arguing the Applicant's true motivation was to marginalize him.

The court, having reserved on costs until the Office of the Children's Lawyer (OCL) report was received, made a global costs award.

The court found both parties contributed to the escalation of costs due to their conduct, with the Applicant's aggressive approach and overstatements, and the Respondent's denial and resistance.

The OCL report validated concerns but did not use the term "abusive." Considering the importance and complexity of the issues, the reasonableness of conduct, lawyer's rates, and the overall outcome (Respondent eventually accepting OCL recommendations), the court fixed a global costs award of $24,000, inclusive of disbursements and taxes, payable by the Respondent to the Applicant, which was significantly less than the Applicant's requested $62,000.

The applicant brought a motion seeking a declaration that the respondent was in contempt of a prior judgment.

The respondent was alleged to have failed to cash in a Mauritius Orangefield Insurance Policy and pay the proceeds to the applicant, and to have transferred control of Seasons Limited - Macau Commercial Offshore, both in breach of the judgment.

The court found the respondent in contempt for wilfully and deliberately breaching both orders, rejecting his arguments regarding impossibility of performance and lack of active participation in the transfer.

The penalty phase was adjourned to allow the respondent an opportunity to purge his contempt.

During a conference call in ongoing litigation between the parties, the court addressed procedural steps relating to a proposed motion for leave and a motion concerning affidavits of documents.

The responding party was permitted to prepare and serve materials seeking leave to bring a motion alongside the requested documentary motion.

The court directed that the materials be delivered to chambers by a specified date and scheduled a follow‑up conference call with counsel to review the materials and provide further direction.

In matrimonial litigation following a long marriage, multiple motions arose after the husband assigned himself into bankruptcy while substantial support and equalization issues remained unresolved.

The wife sought consolidation of related corporate litigation concerning ownership of a property, annulment of the husband's bankruptcy under the Bankruptcy and Insolvency Act, and related relief.

The court found significant overlap between the corporate property dispute and the matrimonial proceedings and ordered consolidation.

While the court expressed serious concerns about the husband's credibility and the bona fides of the bankruptcy, it declined to annul the bankruptcy due to evidentiary gaps but lifted the statutory stay to permit the matrimonial action to proceed to an expedited trial.

The husband's motions to vary spousal support and to sever the divorce from corollary relief were dismissed.

The applicant brought a motion to enforce a family arbitration award arising from minutes of settlement reached during mediation, while the respondent moved to set aside the settlement and award.

The respondent alleged she lacked the capacity to understand the agreement due to medication and anxiety during the mediation.

The court held that the respondent failed to establish incapacity or that the applicant had knowledge or constructive notice of any incapacity at the time of settlement.

The psychological evidence did not establish that the respondent was incapable of understanding the proceedings.

The court therefore enforced the arbitration award and dismissed the motion to set aside the minutes of settlement.

Following an earlier endorsement ordering interim spousal support, the parties sought clarification on the tax treatment of payments, the commencement date for monthly support, and the termination date of a $4,000 dividend payment historically paid through the respondent’s company.

The court declined to account for tax consequences in calculating arrears or support, stating that tax treatment is a matter for the Canada Revenue Agency.

The court clarified that the $20,000 monthly interim spousal support obligation was retroactive to November 18, 2010 and payable on the 18th day of each month.

The court further confirmed that the historical $4,000 monthly dividend payment was intended as a temporary measure and would end prior to May 1, 2012.

The respondent was credited for support payments already made when calculating arrears.

The applicant spouse brought a motion seeking interim spousal support, a substantial advance on equalization, interpretation of a prior order regarding dividend payments, and a finding that the respondent breached an earlier court order.

The court applied the test for advances on equalization and held that the applicant failed to demonstrate both a reasonable need for additional funds and a minimum equalization entitlement capable of supporting the requested advance.

The court imputed the respondent’s income at $463,000 and ordered interim spousal support of $20,000 per month retroactive to separation.

The court also interpreted a prior order requiring continuation of historical payments to include a $4,000 monthly dividend payment and ordered arrears to be paid, but declined to impose penalties for breach.