Kevin Whitaker

The appellant mother appealed a consent order implementing the recommendations of a jointly retained assessor for parallel parenting.

She argued the judge failed to consider the children's best interests and that the assessor's investigation was flawed.

The Divisional Court dismissed the appeal, finding the judge made no error in giving effect to the parties' agreement to be bound by the assessor's recommendations, and the appellant failed to demonstrate any palpable and overriding error in the assessor's factual findings.

The appellants appealed a judgment awarding compensation of $228,261.41 to the respondent Estate Trustees on a contested passing of accounts.

The appellants argued the application judge made palpable and overriding errors of fact and awarded a grossly excessive amount.

The Divisional Court found no palpable and overriding errors, noting the application judge correctly applied the five factors for determining compensation and reasonably concluded the Estate Trustees' demand for releases was justified given ongoing matrimonial litigation.

The respondents cross-appealed the costs award, arguing they were denied natural justice by not being allowed to make submissions on offers to settle.

The Court dismissed the cross-appeal, finding that while an opportunity should have been given, the offers would not have affected the substantial indemnity costs awarded out of the estate.

Both the appeal and cross-appeal were dismissed.

The applicant brought a motion seeking to set aside an order striking her pleadings for contempt due to failure to provide court‑ordered disclosure and to set aside a subsequent final order made after an undefended trial granting the respondent an equalization payment and other relief.

The court reviewed the procedural history, noting that the applicant had been repeatedly given opportunities to purge her contempt and comply with disclosure and costs orders but failed to do so.

The applicant did not appeal the earlier orders and did not bring a timely motion within the deadline permitted by the earlier order striking her pleadings.

The court held that the applicant was not entitled to notice of the subsequent undefended trial and failed to establish any basis to set aside the earlier orders.

The motion was dismissed and costs were awarded to the respondent.

The appellant mother appealed a child protection decision granting summary judgment that two children were in need of protection and making them Crown wards without access.

The appellant argued the motions judge improperly relied on hearsay, opinion, and business record evidence and that this reliance violated section 7 of the Charter.

The court held that unopposed affidavit material, verbal agreements, and concessions made during a summary judgment hearing may properly be relied upon, particularly where the parties are represented by counsel and no objection was raised.

The court found no breach of the Charter and concluded the motions judge correctly applied the legal test and made appropriate statutory findings.

The appeal was dismissed.

In an estates dispute between co-executors, the court determined the issue of costs following prior litigation concerning the administration of the estate.

The court applied the factors under Rule 57 of the Rules of Civil Procedure and concluded that one executor had been principally successful, though the result was somewhat mixed.

The court emphasized that estate litigation should not automatically result in costs being paid from the estate and that parties should ordinarily bear their own litigation costs unless the dispute was necessary to properly administer the estate.

Finding that this was not such a case, the court ordered costs payable personally by the losing parties.

Following a family law motion, the court determined the issue of costs and addressed the respondent’s request for reconsideration of a prior order.

Applying the general principle that costs presumptively follow the result, the court found that the applicant was successful for the most part.

The court considered proportionality, urgency of the matter, and the reasonable expectations of the losing party.

The applicant was awarded fixed costs of $3,500 inclusive of taxes and disbursements.

The request to reconsider the prior order was declined.

Following settlement of a family law motion to change at conference, the parties made written submissions on the issue of costs.

The court considered the parties’ offers to settle, their litigation conduct, and the principle of proportionality in exercising discretion over costs.

The judge found both parties were equally responsible for how the litigation had been managed and that the outcome reflected equal success.

In the circumstances, the court declined to award costs to either party.

The applicant husband sought to set aside six separation agreements made between 1999 and 2007, claiming he was coerced and controlled by the respondent wife.

He also sought spousal support and an equalization payment.

The court applied the Miglin framework and found that the applicant failed to provide sufficient evidence of vulnerability or that the agreements were inconsistent with the Divorce Act.

The court concluded the agreements fell within the range of normative outcomes and dismissed the application.

Costs decision following a lengthy will challenge trial.

Although the plaintiff ultimately proved the validity of the will and became executor and principal beneficiary, the court found the defendants had reasonable grounds to challenge the will due to numerous suspicious circumstances and the plaintiff’s own conduct.

Applying Rule 57.01 and the modern estates litigation approach, the court held that the usual “loser pays” principle may yield where there is a reasonable basis to question testamentary capacity or execution.

Given the suspicious circumstances and litigation conduct, it was appropriate for the estate to bear the litigation costs.

The court fixed costs for the plaintiff and defendants at specified amounts payable from the estate.

Following an unsuccessful jurisdictional motion brought by certain respondents seeking dismissal of part of a claim, the court addressed costs.

The motion was dismissed and another respondent was entirely successful.

Applying the factors under Rule 57 of the Rules of Civil Procedure, including proportionality and the reasonable expectations of the parties, the court fixed costs in favour of the successful party.

Costs were awarded inclusive of taxes and disbursements.

The court determined costs following a short family law motion in which the applicant was mostly successful.

The issues were neither complex nor novel and were argued in a two‑hour hearing with no formal offers to settle and no bad faith by either party.

The applicant sought full recovery exceeding $22,000, while the respondent argued that no costs should be awarded or, alternatively, that costs should be limited to $3,000.

Applying proportionality and the reasonable expectations of the parties, the court found the applicant’s requested range inappropriate for an interim motion.

Costs were fixed at $7,500 inclusive of taxes and disbursements.

The plaintiff son sought to propound his father's last will, which left the bulk of the estate to him and only $1,000 to each of his five defendant sisters.

The sisters challenged the will on the grounds of lack of due execution, undue influence, and lack of testamentary capacity, pointing to suspicious circumstances including the son's involvement in arranging the will with an unknown lawyer.

The court found that while suspicious circumstances existed, the son successfully proved on a balance of probabilities that the father had testamentary capacity and knew and approved of the will's contents.

The court ordered that a Certificate of Appointment of Estate Trustee with a will may issue.

The appellant appealed a decision of the Consent and Capacity Board under the Health Care Consent Act, 1996.

The appeal had not yet been perfected because the appellant had not filed the required factum after service of the Board record and transcript.

The court determined that, given the factual and legal complexity of the issues, the appointment of amicus curiae was necessary to assist the appellant in preparing a factum and presenting the appeal.

The court directed the Attorney General to select experienced counsel from the Consent and Capacity Panel to act as amicus curiae and established timelines for the filing of factums and scheduling of the appeal hearing.

Following a family law hearing, the court invited written submissions from the parties regarding the proper calculation of child support arrears.

The applicant provided written submissions.

The respondent was granted additional time to file responding submissions.

The endorsement provides procedural directions regarding the submission deadline before the court determines the arrears calculation.

Following a motion hearing concerning a significant advance payment request in complex estate-related litigation, the court determined the appropriate costs award.

Applying the factors in Rule 57 of the Rules of Civil Procedure, the court considered the importance and novelty of the issues and the reasonable expectations of experienced litigants.

The plaintiff was successful and entitled to substantial costs for the motion.

The court also addressed the entitlement of the estate trustee during litigation to costs payable from the estate under a prior order.

The court determined costs following family law motion proceedings.

Applying Rule 24 of the Family Law Rules and Rule 57 of the Rules of Civil Procedure, the court emphasized proportionality and the reasonable expectations of the parties.

The issues were significant but the motions were brief, each lasting only a few hours.

As the applicant was largely successful and had made relevant settlement offers, the court awarded costs for two motion attendances and related questioning.

Costs were fixed at $25,000 inclusive of taxes and disbursements.

Following a successful summary judgment motion for payment of shipped merchandise, the parties disputed the appropriate interest rate on the judgment amount.

The plaintiff relied on a 2% per month interest notation printed on its invoices.

The court held that the unilateral notation on invoices did not establish an agreement to that interest rate, particularly given the parties’ prior course of dealing where interest had not been charged.

In the absence of an agreement, the presumptive statutory interest rate under the Courts of Justice Act applied.

The court ordered that both pre-judgment and post-judgment interest be calculated at the statutory rate as simple interest.

The applicant sought a divorce, equalization relating to a condominium property in China, and access.

The respondent brought a cross-application seeking child support and arrears.

The court found no evidentiary basis that the applicant had any interest in the foreign property and dismissed the equalization claim.

Income was imputed to the applicant for certain years due to evidence of undeclared business income, and retroactive child support arrears were ordered from the date of separation together with ongoing support and contributions to extraordinary expenses.

On a motion and cross-motion in a long-term marriage, the applicant sought interim spousal support, arrears, disclosure orders, and preservation of property.

The respondent disputed the amount of interim support and sought to sever the divorce from corollary issues.

Applying the Spousal Support Advisory Guidelines and considering the respondent’s true available income including grossed-up corporate earnings, the court fixed interim spousal support at $25,187 per month.

Retroactive support was ordered from January 1, 2012, and disclosure obligations were imposed on the respondent.

The court also granted an order preventing depletion of property and severed the divorce from the remaining issues.

Following a four‑day trial under the Simplified Rules in which the action was dismissed, the defendant sought substantial indemnity costs relying on a Rule 49 offer to settle.

The plaintiff argued that no costs should be ordered or that costs should be limited to a modest amount due to the nature of simplified procedure and the unsettled state of the law on the facts.

The court accepted that costs in Simplified Rules proceedings are often significantly lower than ordinary trial costs and should be assessed with that expectation in mind.

Considering the Rule 49 offer and the factors in Rule 57, the court fixed the defendant’s costs at a reduced amount inclusive of taxes and disbursements.