Lene Madsen

The Crown appealed a lower court's decision to stay charges against the respondent, Elijah Jacques-Taylor, under section 11(b) of the Charter due to unreasonable delay.

The application judge found a net delay exceeding the 18-month Jordan ceiling, after deducting defence delay and a period for COVID-19 backlog.

The Crown argued errors in applying the contextual approach to initial date setting, failing to deduct delay from a co-accused's unavailability, and implying the Crown should have severed the respondent.

The Court of Appeal dismissed the appeal, affirming the application judge's findings that the contextual approach was correctly applied, delay from a co-accused is not automatically attributed to all, and the Crown had tools to address delay without necessarily severing.

The applicant brought a motion seeking an order for the respondent to provide his 2022 income tax return and for a qualified business valuator (CBV) to be retained to quantify his income for support purposes.

The tax return issue was resolved by consent.

The court granted the order for a joint CBV retainer, finding it necessary due to the complexity of the respondent's income sources (employment, rental, corporate) and inadequate financial disclosure.

The decision emphasized the income earner's burden to establish their income and the Family Law Rules' objective of fairness and efficiency.

This is a costs endorsement following the dismissal of an urgent motion brought by the applicant, Daniel Kirk Howard, to set aside a prior endorsement by Justice Tweedie, alleging fraud on the part of the respondent, Teaha Adele Howard.

The court dismissed the fraud allegation in a previous endorsement, finding the evidence unconvincing.

In this costs decision, the court found that the applicant's unsubstantiated fraud allegation constituted bad faith, attracting full recovery costs for the respondent.

Despite the respondent's entitlement to full recovery, the court applied principles of reasonableness and proportionality, reducing the claimed amount.

The applicant was ordered to pay $17,500 inclusive of HST and disbursements to the respondent.

The moving party father brought a motion to change a 2016 final order, seeking changes to the residential schedule, child support, and a dispute resolution mechanism, as well as compensation for a delayed pension transfer.

The responding party mother sought sole decision-making authority and retroactive child support.

The court found that the high-conflict dynamic, largely driven by the father, warranted granting the mother sole decision-making authority over major parenting issues.

The court also imputed income to the father due to intentional underemployment and ordered him to pay $7,609 in retroactive child support.

Ongoing child support was set off under section 9 of the Guidelines, resulting in the mother paying $175 per month.

The father's claim for compensation regarding the pension transfer was dismissed.

The applicant brought a contempt motion against the respondent for failing to comply with previous court orders regarding the filing of corporate tax returns and winding up a company.

The respondent, who was self-represented and challenged the court's jurisdiction, did not substantively respond to the allegations.

The court found the respondent in contempt beyond a reasonable doubt, noting her deliberate non-compliance and history of disregarding court orders.

The court declined to allow the respondent to purge her contempt due to extensive delays and ordered specific remedies, including dispensing with her consent for tax documents and corporate winding-up, and directing the distribution of funds held in trust to cover corporate tax liabilities, accounting fees, and outstanding costs owed to the applicant.

This is a costs endorsement following a parenting and grandparent contact trial.

The respondent, Brittney Trovao, was successful at trial and sought costs against the applicants, Nemanja Grujicic and Georgina Grujicic.

The court found Georgina Grujicic to be the driving force behind the litigation and ordered her to pay $50,000.00 in costs to Brittney Trovao, inclusive of HST and disbursements.

The court considered the principles of reasonableness and proportionality, Brittney's success, Georgina's unreasonable conduct (though not bad faith), and Georgina's ability to pay, allowing for installment payments.

No costs were ordered against Nemanja Grujicic.

The applicant brought a motion seeking further financial disclosure from the respondent, specifically bank statements and cancelled cheques, in the context of a motion to change child support.

The applicant argued the disclosure was necessary to ascertain the respondent's true income, noting discrepancies between his hourly rate and reported income.

The court dismissed the motion for bank statements, finding the request disproportionate and akin to a fishing expedition, as the respondent was a unionized T4 employee with reasonable explanations for income fluctuations.

However, the court ordered the respondent to produce a more detailed employment letter.

The Applicant brought a motion to strike the Respondent's Answer due to his persistent non-compliance with court orders, including failure to participate meaningfully in the proceeding, pay costs, and file required documents.

The court found multiple triggering events for striking the pleadings, noting the Respondent's pervasive disregard for court authority and the resulting delay.

While acknowledging the drastic nature of striking pleadings, especially in family law cases involving children, the court found it proportionate given the circumstances.

The Respondent's Answer was conditionally struck, allowing for reinstatement if he complied with specific terms by a set date.

If non-compliance persists, the Respondent's trial participation will be severely limited, but not entirely denied, to ensure a "richer record" for the children's best interests determination.

Costs were awarded to the Applicant.

In an interprovincial support variation proceeding, the applicant sought termination of child support for three adult children and termination of spousal support under a 2008 Manitoba order, while the respondent sought continuing support and retroactive increases.

The court found multiple material changes in circumstances, including the parties’ changed incomes, the children’s adulthood, one adult child’s receipt of disability benefits, and changed living and educational arrangements.

Applying the law governing adult-child support, disability-based dependency, and retroactive support, the court held that ongoing child support was no longer payable for two adult children, and for the youngest only during a brief period of full-time post-secondary studies while residing with the respondent.

The court accepted retroactive child support recalculation in principle because of nondisclosure, but concluded no retroactive amount was payable and no credit should be given for alleged overpayments of special expenses.

Spousal support was terminated prospectively as of December 31, 2022, no retroactive spousal adjustment was ordered, and the restraining order claim was dismissed.

The applicant father and paternal grandmother sought parenting time and grandparent contact with a six-year-old child.

The respondent mother, who had sole decision-making and residency, consented to the father's parenting time but had concerns about the grandmother's highly conflictual behaviour.

The court ordered bi-weekly parenting time for the father with a third party present.

Applying the test for grandparent contact, the court deferred to the mother's decisions, granting the grandmother limited supervised contact on the terms proposed by the mother, subject to the mother's sole discretion to suspend contact.

The father was also ordered to pay ongoing and retroactive child support on consent.

The applicant brought an urgent ex parte motion seeking a temporary order to restrain the respondent from depleting his assets.

The parties had previously agreed to submit all issues to mediation-arbitration.

The applicant discovered the respondent had unilaterally withdrawn $1.25 million from an account that required dual signatures.

The court granted the temporary preservation order under the Arbitration Act, noting that an arbitration award would likely not be enforced by financial institutions without a court order, and scheduled a return date for the motion.

The parties participated in a binding judicial dispute resolution (JDR) process to resolve outstanding parenting issues regarding their eight-year-old child.

The JDR process, a pilot program in the Kitchener Unified Family Court, allowed the parties to settle most issues on consent.

The court adjudicated the remaining narrow issues, including the financial implications of major decision-making, exchange locations, and attendance at extra-curricular activities, focusing on minimizing the child's exposure to conflict.

The Catholic Children's Aid Society brought a child protection application regarding a four-year-old child.

The society sought a supervision order placing the child with the mother, while the paternal grandmother and father sought custody.

The court found the child in need of protection based on a risk of emotional harm under s. 74(2)(h) of the CYFSA, stemming from the paternal family's high-conflict and alienating behaviours towards the mother.

The court found no risk of physical harm from the mother.

Concluding that the mother was a capable and loving parent who would foster the child's relationship with the paternal family, the court awarded sole custody to the mother and granted specified parenting time to the father.

In a child protection trial under the CYFSA, the court found the child in need of protection based on risk of physical harm, risk of emotional harm, and the mother’s unavailability at the time of apprehension.

The court accepted evidence of serious, longstanding, and largely untreated mental health concerns affecting the mother’s ability to regulate conduct, cooperate with professionals, and make child-focused decisions, and also found unresolved risk arising from an adult child residing in the home.

Although the mother demonstrated strengths in housing, instrumental care, and positive access, the court held that neither return nor supervision was sufficient to protect the child because the requisite cooperation, insight, and reliability were absent.

A six-month interim society care order was made, with specified minimum unsupervised access for both parents.

The Children's Aid Society sought an order for extended Society care for three Indigenous children with high needs.

The father sought their return under a supervision order, supported by the mother.

The court found that the protection concerns that led to the children's removal had not been mitigated by the parents, and the Society's efforts to provide culturally appropriate services and support were inadequate.

Despite the children's strong desire to return to their father, the court concluded that extended Society care was the only safe option.

However, recognizing the importance of the children's Indigenous identity and their meaningful relationships with their family, the court ordered robust access for both parents and the paternal grandmother.

In a child protection trial, the Children's Aid Society sought to qualify a pediatrician as a participant expert.

The Office of the Children's Lawyer and the parents opposed the qualification, arguing the pediatrician was engaged for litigation and his methodology was flawed.

The court applied the White Burgess framework and Rule 20.2 of the Family Law Rules, concluding the pediatrician could testify as a participant expert because his opinions were formed during his involvement as a treating pediatrician, not for litigation.

The court circumscribed the scope of his permissible evidence to his observations, diagnosis, treatment, and prognosis of the children.

The Children's Aid Society sought a finding that three First Nations children were in need of protection and an order placing them in the custody of their maternal aunt in Alberta.

The father sought the return of the children to his care or placement with his family under a supervision order.

The court found the children in need of protection due to the father's ongoing housing instability, mental health challenges, and substance use issues.

Applying the augmented best interests test under both provincial and federal legislation, the court concluded that placement with the maternal aunt was the least disruptive alternative that would protect the children and foster their cultural identity.

The court granted custody to the maternal aunt and ordered specified access for the father.

The father brought a motion for the reinstatement of parenting time, which the mother had unilaterally suspended.

The mother also filed affidavits from the children, which were later withdrawn.

The court found that the mother's unilateral suspension of the court-ordered parenting schedule was unacceptable and that any changes to a court order must be sought through a formal Motion to Change.

The court ordered the immediate reinstatement of the parenting schedule from a 2013 order and dismissed the father's request for make-up time.

The mother was ordered to pay costs to the father due to her unreasonable conduct, including her failure to follow a court order and the improper filing of children's affidavits.

The applicant father brought a motion to change an interim consent order to substantially expand his parenting time and add a police enforcement clause.

The respondent mother brought a cross-motion seeking minor adjustments and payment of outstanding childcare costs.

The court found no material change in circumstances since the interim order was made, noting that the conflict, lateness, and police involvement existed prior to the consent order.

The court emphasized that interim orders should only be varied in compelling or exceptional circumstances.

Both the father's motion to change parenting time and the mother's cross-motion were dismissed, with financial issues adjourned to trial.

This is a costs endorsement following a successful motion by the applicant for the return of the parties' children to Nigeria.

The court found the respondent's conduct in unilaterally removing the children from Nigeria was unreasonable.

Crucially, the court found the respondent acted in bad faith by presenting a purported travel consent document that was not authentic and by intentionally deceiving the court regarding the father's consent.

Despite this finding of bad faith on a specific issue, and the applicant seeking full recovery costs of $79,900, the court applied principles of reasonableness and proportionality, considering the overall nature of the proceeding (a motion, not a trial) and the respondent's ability to pay.

The court awarded the applicant $25,000 in costs, payable in monthly installments.