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 respondent mother sought sole decision-making responsibility, sole parenting time, a no-contact order against the respondent father, and permission to obtain a passport and travel internationally with their child without the father's consent.

The father did not respond to the claims and did not participate in the uncontested trial.

The court found that the father had a history of criminal behaviour, physical violence, and verbal abuse, and had been largely absent from the child's life.

The court granted the mother's requests, including a no-contact order, finding it in the child's best interests.

Following a Reference regarding the partition and sale of a jointly owned property, the court determined the costs payable by the parties.

The respondent Banifatemi, who was completely successful on the Reference, was awarded partial indemnity costs of $8,238.40 payable by the applicant.

The applicant and the respondent Abdollahpour had divided success; the court ordered the respondent Abdollahpour to pay the applicant reduced costs of $2,000.00.

The applicant paternal grandmother sought contact with her grandson.

The respondent mother agreed to a gradual resumption of contact, while the respondent father supported the application but did not otherwise participate.

The father had previously commenced a divorce proceeding in Perth, which automatically stayed the grandmother's application under s. 27 of the Children's Law Reform Act.

The court lifted the stay, finding no bad faith, prejudice to the mother if the stay remained, and a waste of court resources if the matters were not dealt with together.

A consent order for grandparent contact was issued, and the mother's claims against the father were directed to an uncontested trial.

Following a motion for partition and sale of the matrimonial home and a cross-motion for spousal support, the applicant sought costs of $5,337.99.

The court found the applicant was the successful party on the primary issue of the home's sale.

The court determined that the respondent acted unreasonably by changing her position on the sale and serving materials late, which unnecessarily increased the applicant's legal fees.

The court ordered the respondent to pay costs fixed at $4,200, payable from her share of the net sale proceeds.

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 applicant previously brought a motion regarding arrears of child support and section 7 expenses.

The court issued an endorsement but left 2015 arrears undetermined pending income information.

The parties subsequently agreed on the respondent's 2015 income and arrears.

The court issued this addendum to update the previous endorsement with the agreed-upon figures for child support and post-secondary education expenses.

The parties, who are family members, disputed which real estate agent should list the matrimonial home for sale.

The respondents were successful on the motion and sought costs.

The applicant argued costs should be postponed until ancillary issues were resolved by a Master.

The court declined to postpone costs and awarded partial indemnity costs to one respondent and substantial indemnity costs to the other respondent from the date of her Rule 49 offer to settle.

The parties, who are family members, were in an acrimonious dispute regarding the sale of a mutually-owned home and could not agree on a real estate agent.

The applicant opposed severing the lot, while the property had significant potential for severance to maximize value.

The court reviewed valuation reports from two proposed agents and an appraiser.

The court selected the agent who recognized the property's potential for severance, finding this approach would best achieve the highest fair market value.

The court ordered the property to be listed with that agent and referred remaining issues to the Master.

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.

The appellants appealed a summary judgment dismissing their claim for the return of a 50% interest in a property transferred to the respondent upon her marriage.

The appellants argued the transfer was a conditional dowry (mahr) under Iranian tradition, requiring return upon marriage breakdown, and was obtained through undue influence.

The Court of Appeal upheld the motion judge's finding that the transfer was an irrevocable, unconditional gift, noting the Deed of Gift contained no conditions and the Statute of Frauds barred reliance on an alleged oral promise to reconvey the property.

The appeal was dismissed.

This was a family costs endorsement following a three-day trial in which most issues had already been resolved by partial minutes of settlement and only four narrowly defined parenting issues remained.

The party seeking costs was more successful on the issues tried, but not entirely successful, and the court found both parents had conducted the litigation reasonably.

The court also emphasized that it had made some orders neither party had requested in order to address ongoing parenting dynamics and had remained seized of the matter for one year.

Full recovery was denied and costs were fixed at $15,000 plus the assessor's trial attendance disbursement of $2,750, payable in monthly instalments.

This was a family law costs endorsement following a complex summary judgment motion.

The respondent, who had been completely successful on the motion, sought full indemnity costs after exceeding the terms of an offer to settle.

The court held that Rule 18 of the Family Law Rules entitled the successful party to full costs from the date of the offer and, considering the Rule 24 principles, fixed costs at $18,500 inclusive of HST and disbursements.

The applicants' arguments about excess time and partial indemnity were rejected.

In an addition to earlier reasons, the court addressed an omitted procedural issue raised by the respondent in a family law proceeding.

The respondent sought severance of the divorce claim from the balance of the applicants' claims as a preliminary step to permit the hearing of a summary motion.

The applicants did not oppose the request.

The court granted the severance request nunc pro tunc.

The respondent wife brought a motion for summary judgment to dismiss the applicants' claims for the return of a 50% interest in a property, wedding expenses, and wedding gifts following the parties' separation after a short marriage.

The applicants alleged the property transfer was conditional, fraudulently induced, and signed under duress.

The court applied the expanded fact-finding powers for summary judgment and found that a valid, unconditional gift of the property had been made, with no genuine issue requiring a trial regarding fraud, duress, or oral conditions.

The motion for summary judgment was granted and the applicants' claims were dismissed.