Philip W. Augustine

On a family law interim motion, the applicant sought expert-retention orders, appraisal and disclosure relief, a declaration that an adult child remained dependent, increased temporary spousal and child support based on imputed income, retroactive support, and reimbursement for special and extraordinary expenses.

The court held that the agreed expert and appraisal-related relief resolved part of the motion, but declined to determine contested support issues on the interim record.

Relying on the limited function of temporary support motions and the adequacy of an existing holding order, the court found that imputation of income, retroactivity, special expense contribution, and the adult child's dependency status required fuller tested evidence at trial.

The motion was dismissed except for relief already agreed to.

The moving party husband brought a motion for security for costs and for the payment of a previously ordered costs award.

The responding party wife brought a cross-motion to amend her pleadings to claim unpaid salary and occupation rent, and for leave to file late expert business evaluation reports.

The court found that the responding party's effective residence was outside Ontario, she had an unpaid costs award, and she had caused substantial delay in the proceedings.

The court ordered the responding party to post $60,000 in security for costs and pay the outstanding $5,000 costs award, failing which her case would be removed from the trial list.

The court dismissed the responding party's motion to amend pleadings due to delay and unfairness, but granted her leave to file most of the late expert reports.

Following a six-day family law trial involving complex property and support issues, the applicant sought $275,000 in costs.

The respondent argued for no costs due to divided success.

The court found the applicant was the more successful party overall and had beaten her offers to settle.

The court also noted the respondent's unreasonable litigation conduct in failing to value his business interests.

The respondent was ordered to pay $225,000 in costs to the applicant.

The parties separated after a 20-year relationship.

The court determined the equalization of net family property, including the treatment of the respondent's interest in a family trust created during an estate freeze.

The court found the respondent had sufficient control over the trust to include its value in his net family property, and declined to exclude it as a gift because the applicant was a co-beneficiary.

The court imputed corporate pre-tax income to the respondent, fixing his income at $242,148, and ordered retroactive child and spousal support.

The matrimonial home was valued at $1,000,000.

Following a motion to vary in a family law proceeding, the court considered submissions on costs.

Both parties had made offers to settle, but neither offer was more favourable than the result obtained, rendering Rule 18(4) of the Family Law Rules inapplicable.

The court found that success on the motion was divided, with each party prevailing on some issues including income determinations, child residence, retroactive child support, and section 7 expenses.

The court rejected arguments that one party’s financial advantage or alleged aggressive litigation conduct justified a costs award.

In light of the mixed outcome, the court ordered that each party bear their own costs.

The applicants sought leave to have solicitor accounts assessed in relation to estate-related legal work.

The court held the application was out of time under ss. 3 and 4 of the Solicitors Act because the accounts had been delivered months before the application and had been fully paid more than twelve months before the request for assessment.

No special circumstances were established, and there was no fraud or gross misconduct to engage the court's inherent jurisdiction.

The application was dismissed and costs of $8,000 were awarded to the respondent.

The moving party brought a motion for an interlocutory injunction to prevent the responding party from depleting her RRSP savings and for summary judgment requiring her to return an engagement ring.

The parties had cohabited but never married.

The court found the moving party met the three-part test for an injunction, noting the responding party had previously refinanced her home without disclosure, reducing the moving party's security.

The court also granted summary judgment for the return of the engagement ring, applying section 33 of the Marriage Act, which removes fault from the consideration of recovering gifts made in contemplation of marriage.

The Estate Trustees brought an application to pass their accounts for the period from June 9, 2010, to June 30, 2011.

The objecting beneficiaries challenged the legal fees incurred in defending ongoing matrimonial litigation and the quantum of the Estate Trustees' compensation claimed at 2.5%.

The court found the legal fees were reasonably incurred given the high-conflict matrimonial litigation.

Applying the five factors from Re Toronto General Trusts, the court reduced the compensation slightly to 2.25% across all categories, fixing it at $228,261.41.

The court also found the Estate Trustees were justified in requiring releases and withholding bequests due to threatened litigation.

The applicant moved for temporary spousal support, while the respondent moved for possession and sale of the matrimonial home, dispensing with the applicant's consent for the sale, and a restraining order.

The court awarded temporary spousal support to the applicant, imputing a modest income to her while recognizing her need and language barriers.

The court ordered the sale of the matrimonial home but declined to dispense with the applicant's consent or to issue a restraining order due to lack of evidence.

Costs were awarded to the successful applicant.

Counsel requested clarification regarding the disposition of costs following an appeal decision that directed a new trial on the issue of unjust enrichment.

The Court of Appeal issued a costs addendum clarifying that the costs of the first trial are left to the discretion of the judge hearing the new trial.

The husband's father transferred common shares in his company to the husband as part of an estate freeze.

The trial judge found the shares were not a gift and included them in the husband's net family property for equalization.

The Court of Appeal reversed this finding, holding that the shares were a valid gift despite the father's commercial motivations and the husband's lack of knowledge of certain conditions attached to the transfer.

However, the Court of Appeal ordered a new trial because the trial judge failed to determine the wife's claim for a beneficial ownership interest in the shares via constructive trust before calculating the equalization payment.

The purchasers entered into an agreement to buy land, but it was later discovered the vendor owned 12% less land than described.

The purchasers sought specific performance with an abatement of the purchase price.

The trial judge dismissed the claim for an abatement and allowed the vendor's counterclaim for delay damages.

On appeal, the Court of Appeal reversed the decision, holding that a purchaser is generally entitled to specific performance with an abatement where the vendor cannot convey the whole property, and the trial judge erred in his application of equitable principles.

The appeal was allowed, the abatement granted, and the counterclaim dismissed.

The appellant requested that the Court of Appeal substitute the terms of access previously ordered.

The court declined, finding that the ordered terms were not unworkable and that the appellant's request for a substantially extended timesharing arrangement amounted to a marked deviation from the original order.

The court held that the appellant must bring a motion in the trial court to vary access.

The request was dismissed.

In a supplementary endorsement, the Court of Appeal addressed the costs of the appellant's unsuccessful stay motion, which had been reserved to the panel hearing the appeal.

The court awarded the respondent costs of the motion fixed at $5,000, inclusive of disbursements and GST.

The appellant father appealed a trial judgment granting sole custody of the parties' daughter to the respondent mother.

The father sought joint custody or a new trial, alleging he was denied a fair trial due to being unrepresented, an alleged conflict of interest involving a legal secretary, and procedural unfairness.

The Court of Appeal dismissed the fair trial arguments and upheld the sole custody order, finding that the parents' high-conflict relationship made joint custody unworkable.

However, the Court allowed the appeal in part to grant the father increased access to the child.

The appellant husband appealed a trial judgment ordering him to pay $8,000 per month in spousal support following a 23-year marriage.

Prior to the appeal, the appellant wilfully defaulted on his support obligations, accumulating over $50,000 in arrears.

The Court of Appeal noted it could dismiss the appeal for non-compliance but chose to hear it on the merits.

The court upheld the trial judge's findings regarding the appellant's income and the decision not to impute income to the respondent due to her ongoing responsibilities caring for their special needs children.

The appeal was dismissed, and the spousal support order was affirmed.