Kevin Joseph Kavanagh

In a focused trial on the sole issue of the parties' date of separation under the Family Law Act, the court determined that the parties separated on October 5, 2022, not June 7, 2020 as the respondent alleged.

The respondent claimed that the parties agreed to separate in June 2020 but continue cohabiting for the sake of their children.

The applicant contended that the marriage remained intact until October 5, 2022, when she discovered the respondent was living a double life with another woman, with whom he owned a house and had a child.

The court found the applicant's evidence credible and rejected the respondent's position, finding that the parties continued to live as a married couple and hold themselves out as such until October 2022, and that a spouse cannot separate in secret without making their intentions clear and unequivocal to the other spouse.

The applicant sought a prescriptive easement over a portion of a shared driveway.

The respondents consented to an easement over the middle and back portions but disputed the "front piece." The court found the applicant failed to establish the requisite continuous or permanent use of the front piece prior to the Land Titles transfer in 1996, due to the presence of a concrete retaining wall.

Furthermore, the court determined that an easement over the front piece was not reasonably necessary for the better enjoyment of the dominant tenement, as the alleged use (getting in and out of cars) was merely a personal convenience.

The application for the front piece was dismissed, while the consented easement for the middle and back portions was granted.

Costs were awarded to the respondents on a partial indemnity basis.

The parties sought a determination on the applicable interest rate for child support and post-secondary education arrears previously found owing.

The respondent mother argued for a 6% post-judgment interest rate from the 2008 order date, accruing from default, based on s. 129 of the Courts of Justice Act.

The applicant father proposed various alternative average interest rates or the rate from the date of the endorsement quantifying arrears.

The court found that the father's obligations were known from the 2008 order, and the mother's motion was for enforcement.

The court rejected the father's proposals for lack of certainty and insufficient evidence to exercise discretion under s. 130 CJA.

The court applied s. 129(1) and (2) of the CJA, ruling that a 6% post-judgment interest rate from the 2008 order date applied, accruing from the date of each default.

No costs were awarded due to the parties' unreasonable litigation conduct on this issue.

The respondent sought costs on a full recovery basis following a motion to enforce a prior order.

The court found the respondent to be the "more successful party" but not "almost entirely successful," and that settlement offers did not trigger full recovery.

The court also noted the respondent's "dogmatic" approach to medical/dental expenses disproportionately increased hearing time.

The applicant's conduct regarding post-secondary education obligations was deemed "obfuscation and deliberate." Costs were awarded to the respondent on a substantial indemnity basis, but reduced due to excessive fees and unreasonable disbursements (investigator).

The applicant mother sought to enforce and vary a 2008 child support order, including retroactive adjustments for child support and section 7 expenses for two adult children.

The respondent father disputed the retroactive application of support principles, arguing one child was no longer a "child of the marriage" when the motion was initiated.

The court characterized the mother's motion primarily as one of enforcement due to the father's failure to comply with financial disclosure obligations under the existing order.

The court determined the father's income for various years, his province of residence for child support table calculations, and the termination dates for child support for both children.

The court also addressed post-secondary education expenses, excluding bus passes, and found the father failed to prove his contributions.

For section 7 expenses, the court emphasized the requirement for advance written consent for each expense, finding the mother had disregarded this process.

The Abdollahpours brought a motion to vacate a Certificate of Pending Litigation (CPL) on one property (300A Ferndale) and sought leave to register a CPL on another (300B Ferndale).

They were unsuccessful in vacating the CPL on 300A but successful in registering one on 300B.

The responding party, Banifatemi, sought costs based on a pre-motion offer to settle that mirrored the court's ultimate order.

The court awarded partial indemnity costs of $10,000 to Banifatemi, payable by the Abdollahpours, finding that Banifatemi's offer reflected the "common sense, inevitable outcome" and that he was successful on the principal issue of maintaining the CPL on 300A.