Justin Dugald Clark

Following motions for an interim parenting order and a Form 14B motion for fresh evidence, the successful respondent mother sought costs on a substantial indemnity basis.

The applicant father argued no costs should be awarded or they should be reserved to the trial judge.

The court rejected the father's arguments, finding his settlement offers unreasonable and his Form 14B motion materials misleading.

The court awarded the respondent mother costs fixed at $23,000 inclusive of taxes and disbursements.

The applicant father brought an urgent motion seeking interim sole custody and primary residence of the children, and exclusive possession of the matrimonial home, alleging the respondent mother's uncontrolled alcoholism posed a risk to the children.

The motion was heard during the Covid-19 pandemic via videoconference.

The court dismissed the father's requests for sole custody and exclusive possession, finding he failed to establish that the mother's alcoholism was uncontrolled or posed a risk.

The court also ruled that surreptitious surveillance evidence was inadmissible due to public policy against such practices in family law.

Instead, the court ordered joint custody and week-about access, and provided extensive commentary on the need for parties and counsel to adopt a less litigious and more cooperative approach, especially during the pandemic.

The applicant mother brought a motion for $30,000 in interim disbursements under Rule 24(12) of the Family Law Rules to fund a critique of the respondent father's income valuation and further litigation steps regarding child support.

The court applied the modified Okanagan test for family law cases.

While finding the applicant impecunious and that an award would level the playing field, the court dismissed the motion without prejudice because the applicant failed to establish a prima facie case that the respondent's income was higher than disclosed, and failed to provide evidence detailing how the requested funds would be utilized.

The applicant wife sought spousal support and equalization of net family property following a 25-year relationship.

The court found that the matrimonial home, which had been transferred solely to the wife's name to shield it from the husband's creditors, was held in a resulting trust with each party owning a 50 percent interest.

The court declined to order an unequal division of net family property despite the husband's morally reprehensible conduct, finding it did not meet the high threshold of unconscionability.

The wife was ordered to pay an equalization payment of $107,540.28.

The court also found the wife entitled to compensatory spousal support, imputed the husband's income at $95,000, and ordered a lump sum spousal support payment of $96,064 to effect a clean break due to high acrimony.

The applicant wife and respondent husband separated after a 25-year relationship.

The wife sought spousal support and equalization of net family property.

The court found that the matrimonial home, which had been transferred solely to the wife's name to protect it from the husband's creditors, was held 50 percent in trust for the husband under the presumption of a resulting trust.

The court declined to order an unequal division of net family property, finding that the husband's morally reprehensible conduct did not meet the exceptionally high threshold of unconscionability under s. 5(6) of the Family Law Act.

The wife was ordered to pay an equalization payment of $107,540.28.

The court found the wife entitled to spousal support, imputing the husband's income at $95,000.

Due to the high level of acrimony between the parties, the court ordered the husband to pay a lump sum spousal support amount of $96,064 to effect a clean break.

In a family law proceeding, the court addressed costs following a motion where the husband sought leave to bring a further motion for disclosure concerning the wife’s income from a family trust pursuant to an earlier court order.

The husband argued he was successful and presumptively entitled to costs under Rule 24(1) of the Family Law Rules.

The wife and the family trust contended that the leave granted was significantly narrower than the broad disclosure sought in the husband’s motion materials and argued they should receive costs.

The court determined that the issue of costs should be reserved to the judge hearing the forthcoming disclosure motion, who would be best positioned to assess the scope and outcome of the disclosure request.

The respondent father brought a motion to change a final order dated March 11, 2010, seeking termination of child support for an adult child who had completed university studies, initiation of child support from the mother for another adult child attending university, and a contribution toward special expenses.

The mother opposed, arguing that the child had unilaterally repudiated their relationship and therefore was not entitled to support.

The court found that the child had not voluntarily withdrawn from parental control but rather had been driven from the mother's home due to circumstances involving a third party, constituting a "constructive" withdrawal.

The court ordered the mother to pay child support retroactive to May 1, 2011, and to contribute 40% of special expenses.

The mother appealed an order under the Hague Convention requiring the return of her daughter to the United Kingdom.

The application judge found that the child's habitual residence was the U.K., as the parents had not given up their residence there when they travelled to Canada.

The Court of Appeal found no palpable and overriding error in the application judge's factual findings regarding habitual residence or his decision not to require oral testimony.

The appeal was dismissed.

The appellant appealed the dismissal of his motion to vary his spousal and child support obligations and rescind arrears.

The respondent requested the court refuse to hear the appeal due to the appellant's willful refusal to pay support, but the court proceeded on the merits.

The appellant argued for a reduced standard of review because the motion judge's findings were based on a written record.

The Court of Appeal rejected this argument, applying the palpable and overriding error standard from Housen v. Nikolaisen, and found no basis to interfere with the motion judge's factual and credibility findings.

The appeal was dismissed with costs.

The appellant appealed a judgment of the Superior Court of Justice.

The parties reached a settlement prior to the hearing.

The Court of Appeal ordered that an order go in terms of the settlement letter dated March 22, 2006.