Leonard Levencrown

Following dismissal of a motion brought by a claimant in insolvency proceedings, the joint official liquidators sought costs on a substantial‑indemnity basis.

The court considered the principles governing costs under Rule 57 and the Court of Appeal’s guidance that costs awards should be fair and reasonable rather than reflective of full indemnity.

Although the motion had been unsuccessful and described by the liquidators as frivolous, the court found the surrounding proceedings involved confusion and unresolved issues concerning entitlement to assets in multiple jurisdictions.

The court therefore declined to award substantial‑indemnity costs and instead ordered partial‑indemnity costs.

The amount claimed was reduced due to the use of two lawyers for a straightforward motion.

The applicants, the only children of the deceased, challenged their father's Will, which left his entire estate to his daughter-in-law and appointed his accountant as Estate Trustee.

The applicants alleged lack of testamentary capacity, undue influence, and conspiracy.

The court found that the deceased was a strong-willed, independent businessman who fully understood his assets and intentions.

He deliberately chose to bypass his estranged son and independent daughter to benefit his grandchildren by leaving the estate to his trusted daughter-in-law.

The conspiracy claim was withdrawn, and the court dismissed the application, finding no evidence of undue influence or lack of capacity.

The respondent husband brought a motion to vary spousal support provisions contained in Final Minutes of Settlement following a significant decline in his income from self-employment.

The court considered whether arrears of support barred the motion, whether the Divorce Act or the Family Law Act governed, and whether a material change in circumstances had occurred.

Interpreting the settlement agreement, the court held that a material change tied to income or employment was contemplated by the parties and that the respondent’s approximately 50% decline in business income constituted such a change.

The court varied the support order and directed that spousal support be recalculated using the Spousal Support Advisory Guidelines to equalize the parties’ net disposable income, subject to specified adjustments.

Following a successful family law motion, the applicant sought costs on a substantial indemnity basis.

The court found that the respondent had acted in bad faith by willfully disobeying a prior court order requiring payment of property taxes, thereby placing the matrimonial home at risk of municipal tax sale.

The respondent also failed to provide affidavit evidence explaining his non-compliance and did not respond to the applicant’s costs submissions.

Applying Rule 24 of the Family Law Rules, the court held that the respondent’s conduct warranted full recovery costs.

Costs were fixed and ordered payable forthwith.

The applicant brought a motion seeking a contempt order against the respondent for failing to comply with a prior court endorsement requiring transfer of the matrimonial home.

The respondent sought an adjournment and argued that the court lacked jurisdiction due to the absence of a draft order approval under the Family Law Rules, and indicated that some tax arrears and child support payments had been partially addressed.

The court found ongoing concerns regarding preservation of the matrimonial home, including lapsed home insurance and incomplete compliance with previous orders.

The court directed the Registrar to transfer the property into the applicant’s name in trust pending final resolution of the case and authorized the applicant to encumber the property to secure insurance and address child support arrears.

The applicant was also ordered to attend questioning pursuant to earlier court orders.

The applicant spouse brought a motion seeking a vesting order transferring title to the matrimonial home after the respondent spouse failed to comply with a prior order requiring payment of outstanding property taxes.

The respondent, who held sole title, had allowed property taxes and insurance to lapse, placing the home at risk of tax sale despite the applicant and children having exclusive possession.

The court found the respondent’s non‑compliance was willful and rejected claims that he lacked funds, drawing an adverse inference from his failure to file responsive evidence.

Relying on ss. 9, 12, and 24 of the Family Law Act and s. 100 of the Courts of Justice Act, the court held it had jurisdiction to grant a vesting order to preserve the property pending equalization and other claims.

Title to the matrimonial home was ordered transferred to the applicant to allow payment of taxes, insurance, and preservation of the asset during the litigation.

The appellant appealed a family court judgment ordering him to pay the respondent $45,920.28 for loans and $10,500 for unjust enrichment.

The appellant argued that the monies advanced were co-mingled in a joint account and lost in day trading, and that unjust enrichment could not be established given both parties' contributions to their unmarried relationship.

The Court of Appeal dismissed the appeal, finding that the trial judge's factual determinations regarding the loan and the unjust enrichment were amply supported by the evidence and entitled to deference.

The appellant brought a motion to re-open the hearing of his appeal, primarily arguing for the involvement of the Children's Lawyer.

The Court of Appeal dismissed the motion, noting that the issue was not raised in the notice of appeal or at the original hearing where the appellant was represented by counsel.

The court also noted that any changes in circumstance should be addressed through a new application to vary.

The appellant husband, a Canadian diplomat, appealed an order under the Hague Convention requiring the return of his two children to Poland.

The husband had brought the children to Canada for a visit but subsequently decided to separate from the respondent wife and retain the children in Canada.

The Court of Appeal upheld the application judge's finding that the children were habitually resident in Poland and that the husband's retention of them in Canada was wrongful under the Convention.

The court rejected the argument that the husband's diplomatic status automatically made Canada the children's habitual residence.

The appellant appealed a judgment striking out his pleadings following a lengthy period of demonstrating a cavalier attitude toward court orders.

The Court of Appeal found no error in the judicial discretion exercised to strike the pleadings, nor any error in the conduct of the trial or its result.

The appeal was dismissed with costs fixed at $10,000.

The appellant husband appealed a trial judgment setting aside minutes of settlement and ordering him to pay spousal support.

The parties had signed a settlement in 1998 where the respondent wife accepted a lump sum and waived future support, believing the appellant was unemployed.

The trial judge found the appellant had failed to disclose substantial severance and contract income, taking advantage of the respondent's mental health vulnerability.

The Court of Appeal dismissed the appeal, upholding the finding that the settlement was unconscionable and vitiated by the appellant's non-disclosure.

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 appealed the dismissal of her claim for spousal support under the Divorce Act.

The parties had signed a separation agreement in 1992 under which the appellant released all claims to further support after June 1994.

The appellant subsequently failed to qualify to practice medicine and applied for support in 2001 while destitute.

The Court of Appeal upheld the trial judge's decision, finding that the trial judge had properly applied the principles later established in Miglin v. Miglin.

The trial judge correctly concluded that the agreement substantially complied with the Divorce Act's objectives and that the appellant's current circumstances were largely the result of her own choices, making a support order unjustified.

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.

The appellant appealed an order precluding him from contesting the respondent's financial claims due to his blatant disregard for court orders, specifically his refusal to make financial disclosure.

The Court of Appeal upheld the preclusion regarding financial claims and found his claim for custody unrealistic, as he had not seen the nine-year-old child in almost five years.

However, the Court modified the order to allow the appellant to maintain his answer to the counter-petition solely on the question of access.

The husband appealed a trial decision including his early retirement incentive payments in his net family property.

He argued for the first time on appeal that the payments were a gift and should be excluded under the Family Law Act, or alternatively, that they should be pro-rated based on his years of employment during the marriage.

The Court of Appeal dismissed the appeal, finding the payments were consideration for taking early retirement, not a gift.

The court also upheld the trial judge's decision to include the full amount in the husband's net family property, as he failed to meet the onus of proving the payments were for past services.

The court further upheld the exclusion of a survivor's pension from the wife's net family property due to her health.

The appellant and respondent signed a cohabitation agreement in 1986 that included a mutual waiver of spousal support.

After their separation in 1997, the appellant sought to set aside the waiver under s. 33(4) of the Family Law Act and claimed spousal support.

The trial judge dismissed the claim, applying the stringent test for setting aside an entire domestic contract.

The Court of Appeal allowed the appeal, finding the trial judge erred by not focusing on whether the waiver resulted in unconscionable circumstances at the time of the application.

Given the appellant's age, unemployability, and modest pension compared to the respondent's substantial wealth, the court found the circumstances unconscionable, set aside the waiver, and ordered spousal support of $3,500 per month.

In a family law appeal concerning spousal support after a long-term marriage, the appellant challenged a trial judgment that failed to make findings on disputed issues or explain the support award.

Although the inadequacy of the reasons would normally have warranted a new trial, the court chose to determine the matter on the existing record to avoid further hardship to the parties.

The court rejected both parties' income positions as unrealistic, imputed a higher annual income to the payor than he asserted, and fixed support at $2,500 per month.

The appeal was allowed to reduce the support award, but costs of both the trial and the appeal were awarded to the respondent.

The appellant mother applied to vary spousal and child support after one child moved out.

The motions judge maintained total child support at $1,500 for the remaining child and increased spousal support to $1,300 due to inflation and the respondent's increased income.

The Court of Appeal reduced both awards.

The Supreme Court of Canada allowed the appeal and restored the motions judge's order, holding that appellate courts must defer to a trial judge's support orders absent an error in principle, a significant misapprehension of evidence, or an award that is clearly wrong.