J.P.L. McDermot

Following a family law trial concerning custody, access, and section 7 expenses for the parties’ child, the court addressed the issue of costs.

The respondent mother had been largely successful at trial, obtaining sole custody and restrictions on the father’s access until he educated himself about the child’s serious medical condition, along with ongoing section 7 expense contributions.

Although success was somewhat divided on certain financial issues and the respondent had withdrawn an equalization claim, the court found the applicant father had acted unreasonably in the litigation, particularly regarding his refusal to acknowledge or engage with the child’s medical needs.

Considering Rules 18 and 24 of the Family Law Rules and the parties’ offers to settle, the court concluded the respondent should receive costs, but reduced the award due to mixed success on some issues.

The applicant father obtained an ex parte order for custody and the return of the children after the respondent mother moved with them to New Brunswick without his consent.

The mother brought a motion to set aside the ex parte order and for permission to relocate to New Brunswick on an interim basis.

The court set aside the ex parte order due to the father's failure to disclose material facts, specifically emails indicating the mother's intended moving date and location.

However, the court dismissed the mother's motion to relocate, finding that custody was not a foregone conclusion and a move prior to trial was not in the children's best interests.

The court ordered temporary shared custody with the parents rotating in and out of the matrimonial home.

Estate trustees sought an order compelling the Department of National Defence to produce the deceased’s complete employment and benefits personnel file to investigate the deceased’s capacity to designate a pension death benefit beneficiary.

The court held that the motion was solely for disclosure of personal information held by a federal department and was not brought in the context of an existing action or statutory cause of action.

The Rules of Civil Procedure, the Trustee Act, and the Estates Act did not confer jurisdiction to order such disclosure in these circumstances.

The proper mechanism for obtaining the requested information was through the statutory process under the federal Privacy Act, including a complaint to the Privacy Commissioner and potential review in Federal Court.

The motion was therefore dismissed for lack of jurisdiction.

The defendant general contractor brought a motion to set aside a noting in default and default judgment obtained by the plaintiff subcontractor in a construction lien action.

The plaintiff had served the statement of claim by registered mail to an address it knew the defendant no longer occupied, despite knowing the defendant's actual business address.

The court found the defendant moved promptly upon learning of the default judgment, adequately explained the default due to the method of service, and provided sufficient evidence of a defence based on alleged deficiencies and the lien being registered out of time.

The motion was granted and the default judgment was set aside with no order as to costs.

An uncontested family law trial proceeded after the respondent was noted in default for failing to file an answer or attend the settlement conference.

The applicant sought custody of the parties’ infant child and child support.

The court found the applicant had been the child’s primary caregiver since birth and granted her custody, while establishing a structured access schedule for the respondent including alternating weekends and additional limited visits.

The court imputed the respondent’s income at $60,000 pursuant to s. 19(f) of the Child Support Guidelines due to his failure to file financial disclosure.

Guideline child support of $546 per month was ordered retroactive to the date of service of the application.

The applicants brought a motion to amend a statement of claim in a personal injury action arising from a motor vehicle accident to add Family Law Act claims after the expiry of the two‑year limitation period.

The primary action had been commenced within the limitation period by the injured plaintiff.

Following the plaintiff’s death, her spouse and mother sought to be added as plaintiffs under s. 61 of the Family Law Act for loss of care, guidance, and companionship.

The court held that the derivative claims could be added because the main action had been commenced in time and there was no compensable prejudice to the defendant.

Alternatively, the court found an evidentiary basis that the claims were not discoverable until the plaintiff’s death when the damages exceeded the statutory threshold.

Following the dismissal of a summary judgment motion, the court determined the appropriate costs consequences for both the unsuccessful motion and an earlier motion abandoned by another defendant.

The court held that the unsuccessful moving party failed to establish that its summary judgment motion was reasonably brought in light of credibility disputes requiring a trial.

As a result, the opposing defendant was awarded costs of the summary judgment motion on a substantial indemnity basis under Rule 20.06.

The insurer was granted limited partial indemnity costs for the earlier abandoned motion under Rule 37.09(3), excluding certain examination costs used primarily for its own unsuccessful motion.

After set-off, a net costs award was ordered in favour of the opposing defendant.

The parties brought a motion in a family law proceeding to determine whether post‑termination commission payments received by a financial advisor under a “Commissions on Release” (CORe) program constituted property or income for the purposes of equalization under s. 4(1) of the Family Law Act.

The program paid fixed monthly amounts over ten years representing the capitalized value of future commissions from an advisor’s book of insurance business accumulated during employment.

The court held that the entitlement was a contractual chose in action with determinable value derived from commissions earned during the marriage.

Unlike professional licences or disability benefits tied to future personal services, the payments reflected value created during the marriage and were capable of valuation.

The CORe entitlement accumulated during the marriage was therefore property subject to equalization.

Following a lengthy family trial complicated by the respondent’s undischarged bankruptcy and the abandonment or stay of property and damages claims, the court determined only child and spousal support issues.

The court imputed income of $50,000 to the respondent based on underemployment and fixed the applicant’s income at $17,880 from ODSP, rejecting allegations of substantial hidden business income while also rejecting a higher imputation based on forensic accounting evidence.

With split custody, the court ordered differential child support of $309 per month and spousal support of $600 per month commencing later than trial completion, departing downward from the Spousal Support Advisory Guidelines because of the applicant’s prior receipt of substantial home-sale proceeds and support, the respondent’s actual income circumstances, and the parties’ post-separation financial history.

Claims for retroactive support, repayment of alleged support overpayments, life-insurance security, and bankruptcy relief were dismissed or declined.

Following a family law motion concerning exclusive possession of the matrimonial home, custody, access, and support, the court determined costs of the motion.

The responding party had made a settlement offer before the case conference that was more favourable on key issues than the final order.

Although the offer did not meet the strict requirements of Rule 18(14) of the Family Law Rules because it did not address support and the appointment of the Office of the Children’s Lawyer, the court considered the offer under Rule 18(16) when fixing costs.

The court also found aspects of the applicant’s conduct unreasonable under Rule 24.

Substantial indemnity costs of the motion were awarded to the successful party in the amount of $9,000 payable within 60 days.

In a motor vehicle accident action involving an uninsured driver, the OPCF 44‑R insurer brought a motion for summary judgment seeking a declaration that the insured driver was at least one percent at fault, which would remove the insurer from liability under the Negligence Act.

The court held that credibility issues and conflicting testimony regarding the circumstances of the collision required a trial, applying the “full appreciation test” articulated in Combined Air Mechanical Inc. v. Flesch.

The written record and cross‑examinations created genuine issues requiring trial, particularly regarding the drivers’ credibility and the sequence of events at the intersection.

The summary judgment motion was dismissed.

The insurer was awarded costs of an abandoned motion brought by another defendant and obtained a contingent declaration concerning the priority of insurance coverage for damages exceeding $200,000.

Following a four‑day family law trial primarily concerning custody of the parties’ children, the court addressed costs.

The trial resulted in a shared custody order, retroactive child support, and ongoing spousal support, with the applicant largely successful except on retroactive spousal support.

Applying Rule 24 of the Family Law Rules, the court found the applicant achieved substantial success and was presumptively entitled to costs.

Because the applicant obtained a result equal to or better than her formal offer to settle under Rule 18, she was entitled to partial indemnity costs up to the date of the offer and full indemnity costs thereafter.

Costs were fixed at $16,180 inclusive of HST.

Following a family law trial addressing equalization, retroactive child support, and entitlement to spousal support, the court determined costs of the proceeding.

The respondent at trial was found to have achieved overall success, particularly on the primary issue of entitlement to spousal support, which had been the principal barrier to settlement.

The court found the opposing party’s conduct—including failure to pay ordered support, delayed disclosure, and uncivil communications—was unreasonable but did not rise to the level of bad faith required for full indemnity costs under Rule 24(8) of the Family Law Rules.

Considering the overall success and litigation conduct, the court awarded costs on a substantial indemnity basis, subject to deductions for conferences where no costs order had been reserved.

A costs decision following a family law motion concerning disclosure of tax information and preservation of joint funds.

The responding party to the motion sought full indemnity costs based on an offer to settle and alleged unreasonable conduct by the opposing parties.

The court held that the result did not exceed the offer to settle and therefore did not justify full indemnity costs under the Family Law Rules.

While the court considered improper filing of a reply affidavit to a reply as unreasonable conduct, it also found the successful party’s claimed legal fees excessive and disproportionate.

Costs were awarded on a partial indemnity basis in a reduced amount.

In a family law motion following separation, the respondent sought temporary exclusive possession of the matrimonial home and primary residence of the children.

The parties continued living under the same roof after separation, while serious behavioural issues had emerged for one child amid parental conflict.

Applying s. 24(3) of the Family Law Act, the court held that the best interests of the children—particularly the need to reduce household conflict affecting the child—justified granting exclusive possession.

Evidence indicated the respondent had historically been the primary caregiver, supporting an order that the children reside primarily with her.

The court also ordered guideline child support based on the applicant’s income but declined to award temporary spousal support.

A family law trial addressing custody, parenting arrangements, child support, and spousal support following separation.

The parties had already been exercising a shared parenting arrangement for several years.

The respondent alleged the applicant had alcohol abuse and parenting deficiencies and sought sole custody, while the applicant sought continuation of shared custody.

The court found the allegations largely unsupported and determined both parties were capable parents.

Joint custody with equal parenting time was ordered, retroactive child support was granted, retroactive spousal support was dismissed due to delay and hardship considerations, and ongoing child and spousal support were set based on imputed and actual incomes.

The court determined costs following competing family law motions for temporary relief.

The responding party sought various interim orders including increased spousal support, rental income sharing, and enforcement-related relief, while the applicant and additional respondents brought a counter-motion for questioning and an affidavit of documents.

The court found that each side achieved partial success on different issues, including reimbursement of certain s. 7 expenses and a business valuation order in favour of the responding party, while other claims were unsuccessful.

Applying Rule 24 of the Family Law Rules, the court held that success was divided and that certain issues should have been resolved without court intervention.

In the circumstances, no order as to costs was appropriate.

In a family law proceeding, the moving party brought a motion seeking a declaration of contempt after the responding party transferred substantial funds to an offshore account contrary to a prior non-dissipation order.

The court found the order was clear, the transfers were admitted, and the conduct was wilful or at least wilfully blind.

The responding party’s argument that the transfers merely repaid a debt and were done without understanding the order was rejected.

The court held that court orders must be obeyed and that paying a creditor does not justify breaching a preservation order during ongoing support and property claims.

A declaration of contempt was made, and the responding party was given 60 days to purge the contempt by paying the funds into court.

The applicant brought a motion seeking an interim variation of a prior custody and access order following an incident where the respondent became severely intoxicated while caring for the parties’ young children, leaving them unsupervised and causing police involvement.

The court found that the seriousness of the incident constituted a material change in circumstances affecting the best interests of the children under s. 29 of the Children’s Law Reform Act.

While rejecting the applicant’s request to restrict the respondent to day-only supervised access by a professional supervisor, the court ordered a temporary variation requiring supervised access with the respondent’s parents and continued alcohol monitoring through a SCRAM bracelet.

The court imposed a regime allowing limited overnight access and ordered that any monitored alcohol consumption would immediately suspend access.

The order was subject to review after six months.

Following an urgent family law motion regarding temporary custody and parenting arrangements, the court was required to determine costs after the parties left without addressing the issue.

The respondent father sought costs on a substantial indemnity basis after successfully obtaining a nesting arrangement for the children and related financial orders.

The court found that the respondent achieved substantial success on the motion and that the applicant mother had engaged in unreasonable conduct by unilaterally removing the children from the matrimonial home and seeking to restrict the father’s parenting time.

Applying Rule 24 of the Family Law Rules, the court held that costs should exceed partial indemnity due to the applicant’s conduct.

Costs were therefore awarded to the respondent.