Kristy Ann Maurina

The endorsement addresses the jurisdictional question of whether a Trial Management Conference (TMC) judge has the authority under the Family Law Rules to direct the sequence in which parties lead evidence at trial.

The Applicant argued for the Respondent to lead evidence first, while the Respondent contended the Applicant should lead in the ordinary course.

The court found that a TMC judge does possess such jurisdiction, citing Rules 1(7.2), 2, and 17(6) of the Family Law Rules, and the Supreme Court's direction in Hyrniak v. Mauldin to expand judges' roles in crafting trial procedures.

The court then requested further submissions on whether to exercise this jurisdiction in the present case.

Following the release of its decision on the main appeal, the Divisional Court realized it had inadvertently omitted addressing the appellant's supplementary notice of appeal regarding a $10,000 costs order made by the motion judge.

The respondent argued the issue should be left to the Court of Appeal or dismissed due to late service.

The Court rejected these arguments, deciding to hear the costs appeal and setting a timetable for written submissions.

The appellant mother appealed an order declaring she wrongfully retained her two children in Ontario and requiring their return to Germany under the Hague Convention.

The children had moved to Ontario with the respondent father's consent for a temporary period.

The Divisional Court found that the application judge erred in concluding the children's habitual residence remained in Germany.

The Court held that during the 16-month consensual period, the children's habitual residence changed to Ontario.

The appeal was allowed, the return order was set aside, and the Hague application was dismissed.

Following a Hague Convention application in which the court ordered the return of two children to Germany after finding the mother had wrongfully retained them in Ontario, the court determined the issue of costs.

The father sought over $67,000 on a partial indemnity basis, while the mother argued that each party should bear their own costs or that any award should be substantially reduced.

Applying Rule 24 of the Family Law Rules and Article 26 of the Hague Convention, the court found the father was the successful party but reduced the claimed costs due to excessive billing, duplication of work, inclusion of unrelated steps, and some unreasonable conduct by the father during the proceedings.

The court also considered the mother’s success on a motion involving the Office of the Children’s Lawyer and her financial circumstances.

A global costs award was made reflecting a fair and reasonable amount in the circumstances.

The applicant sought interim orders permitting relocation of the child from Richmond Hill to Guelph, along with custody, schooling, and support orders.

The court applied the best interests test under the Children’s Law Reform Act and the framework from Gordon v. Goertz.

Finding compelling interim circumstances, including housing instability and financial advantages of the move, the court permitted the relocation and determined the disruption to the child and the respondent’s parenting time would be minimal.

Requests for interim child support and section 7 contributions were adjourned due to incomplete financial disclosure.

The court emphasized that interim mobility orders require compelling circumstances but may be granted where the child’s best interests clearly favour the move.

Following dismissal of a support payor’s motion seeking to stay child and spousal support obligations, the court determined the appropriate costs award.

Applying Rule 24 of the Family Law Rules, the court confirmed the presumption that the successful party is entitled to costs and considered factors including the parties’ conduct, proportionality of fees, and the impact of an unaccepted offer to settle.

Although the successful party sought full indemnity costs exceeding $24,000, the court found certain billings duplicative and limited the effect of the offer to settle to the period after its delivery.

The court fixed costs at $9,000 payable by the unsuccessful party in monthly installments.

The applicant father brought an application under the Hague Convention for the return of his two children to Germany.

The children had travelled to Canada with the respondent mother for an educational exchange with the father's consent, which expired in August 2014.

The mother refused to return the children, arguing they were habitually resident in Canada and objected to returning.

The court found the children's habitual residence remained Germany and their retention in Canada was wrongful.

The court rejected the mother's defences under Articles 12 and 13, finding the children's objections were not substantial enough to override the Convention's purpose.

The children were ordered returned to Germany.

In this family law costs endorsement following a motion to strike, the applicant sought full indemnity costs on the basis of the respondent's alleged bad faith.

The court found repeated wilful breaches of court orders, including consent orders, and held that the respondent acted in bad faith within the meaning of Rule 24(8) of the Family Law Rules.

Although full recovery costs were mandatory, the amount claimed was found excessive.

The court fixed costs at reduced full recovery amounts for fees and disbursements, plus HST.

The appellant appealed a summary judgment order requiring him to repay $195,538.98 to a joint line of credit and $10,000 to a corporate respondent, arising from funds withdrawn during matrimonial proceedings.

The appellant argued the repayment obligations had not matured and were tied to other outstanding financial issues.

The Court of Appeal dismissed the appeal, finding the repayment obligations had matured based on the clear terms of the signed documents and the availability of funds, and that no triable issue was established.

Following the dismissal of the applicant's motion for leave to appeal an arbitration award, the respondent sought costs on a full recovery or substantial indemnity basis.

The applicant argued for a reduced quantum due to his success on the issue of the appropriate test for leave to appeal.

The court found that while the respondent was the successful party, the applicant's partial success warranted a reduction.

After considering the factors under Rule 24(11) of the Family Law Rules, including duplication of counsel time, the court fixed costs payable to the respondent at $9,000.

The parties separated after a 19-year marriage.

The wife brought a motion to strike the husband's pleadings, alleging he wilfully breached multiple court orders requiring financial disclosure.

The motion judge granted the motion, struck the husband's pleadings, and ordered an uncontested trial.

The husband appealed.

The Court of Appeal allowed the appeal, finding the motion judge made palpable and overriding errors by characterizing the husband's disclosure as merely 'token' and ignoring evidence of substantial compliance.

The Court reaffirmed that striking pleadings is a drastic remedy of last resort in family law cases.

The applicant sought leave to appeal an interim arbitration award in a family law dispute concerning valuation of corporate and trust interests for equalization purposes.

The arbitrator had dismissed the applicant’s request that the respondent obtain an independent business valuation report, finding a calculation valuation report prepared by the respondent’s expert sufficient.

The court held that the proper test for leave to appeal an interim arbitration award is that in s. 45(1) of the Arbitration Act rather than rule 62.02(4) of the Rules of Civil Procedure.

The applicant failed to demonstrate that the importance of the matters at stake justified an appeal or that determination of the legal questions would significantly affect the parties’ rights.

The applicant remained free to challenge the valuation evidence or obtain his own report at trial.

Following a successful motion by the applicant in matrimonial litigation to add additional parties, the court addressed costs on written submissions.

The respondents and proposed respondents had vigorously opposed the motion to add parties and argued that each party should bear their own costs or that costs should be reserved to the trial judge.

Applying Rule 24 of the Family Law Rules and the principles governing costs articulated in Fong v. Chan, the court held that the successful party was presumptively entitled to costs.

The court found the applicant wholly successful and awarded substantial indemnity costs, subject to proportionality considerations and adjustments to the claimed amount.

Costs totalling $43,586.07 were fixed and apportioned among the former husband and the newly added parties.

The appellant sought leave to appeal an order granting the respondent exclusive possession of the matrimonial home under s. 24(3)(f) of the Family Law Act based largely on hostile and threatening text messages sent during the parties’ separation.

The appellant argued the motion judge misapplied the law and that conflicting case law required more than text messages to establish “violence.” The court held that differing outcomes in other cases reflected discretionary factual determinations rather than conflicting legal principles.

The court found no reason to doubt the correctness of the original order and held that intimidation or psychological abuse conveyed through text messages can constitute violence depending on the factual context.

Leave to appeal was therefore denied.

Following a family law motion in which the applicant obtained exclusive possession of the matrimonial home, the court considered the appropriate costs award.

The applicant sought full recovery alleging bad faith arising from the respondent’s failure to provide timely financial disclosure.

The court declined to find bad faith, holding that the evidentiary record did not establish an intent to deceive or conceal information.

Although the applicant was the successful party, the court found her conduct partially unreasonable for failing to serve an offer to settle and for serving key affidavit evidence only two days before the motion.

Costs were reduced accordingly and a partial recovery awarded.

In a long-running family law dispute following a marriage breakdown, the moving party sought to add several individuals, corporations, and family trusts as respondents to address alleged corporate oppression, trust administration issues, and unresolved financial interests linked to matrimonial property and a family trust.

The court considered whether the claims relating to corporate entities and a trust should be addressed within the family law proceeding or separately on the Commercial or Estates lists.

Applying the Family Law Rules and principles regarding the addition of parties, the court held that the issues were sufficiently interconnected with the matrimonial litigation.

Adding the entities and trustee would promote efficiency and avoid duplicative proceedings.

The motion to add several corporate entities, a trust, and an individual as respondents was granted, while requests to add two other proposed parties lacking a direct connection were dismissed.

The applicant mother brought a motion for exclusive possession of the matrimonial home.

The court previously denied the motion, allowing the respondent father to remain in the home.

The mother renewed her motion, providing evidence of vitriolic and threatening text messages sent by the father.

The court found that the text messages constituted 'violence' under section 24(3)(f) of the Family Law Act, as they were intended to intimidate and caused psychological harm.

Given the violence and the risk of exposing the child to adult conflict, the court granted the mother exclusive possession of the matrimonial home.

The parties appealed and cross-appealed a Superior Court decision that varied an arbitrator's award regarding child and spousal support.

The Court of Appeal upheld the appeal judge's decision, finding that the arbitrator erred in his application of the D.B.S. factors for retroactive child support, misunderstood the tax implications of retroactive lump sum spousal support, and failed to properly analyze whether post-separation income increases were related to the marriage.

Both appeals were dismissed.

Following an extensive family law trial involving property division, business ownership, support, and tort claims between former spouses, the court considered competing claims for costs.

The respondent argued he was substantially successful and relied on a prior offer to settle, while the applicant sought substantial indemnity costs alleging misconduct, fraud, and disclosure failures during litigation.

The court found the respondent was largely successful on major issues but had behaved unreasonably during the proceedings, contributing to mistrust and prolonged litigation.

Applying the Family Law Rules, the court held that the respondent should be deprived of costs but that the conduct did not amount to bad faith warranting an award of costs against him.

Given the conduct of both parties and the overall circumstances, the court ordered that each party bear their own costs.

The appellant appealed an order refusing to add a business and an individual as parties to her matrimonial litigation.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the proposed parties were not necessary and proper because the appellant only sought a monetary equalization payment, not an interest in the business.