Lindsey Love-Forester

The appellant (mother) wrongfully retained two young children in Ontario after travelling from Dubai, UAE, where the children habitually resided.

The respondent father applied under s. 40 of the Children's Law Reform Act for a return order.

The trial judge declined jurisdiction under s. 23 of the CLRA, finding the serious harm threshold was not met, and ordered the children's return to Dubai.

The Supreme Court of Canada, 5-4, dismissed the appeal, holding that the trial judge committed no palpable and overriding error in concluding the children would not suffer serious harm, that separation from a primary caregiver does not automatically satisfy the serious harm threshold, and that the father's undertakings regarding the mother's residency should be included explicitly in the return order.

The dissent would have allowed the appeal on the basis that the trial judge materially misapprehended the evidence on both the likelihood and severity of harm.

This is a costs endorsement following an appeal where the respondent (N.) was entirely successful.

The respondent sought full indemnity costs of $99,500, reflecting a reduction from actual time incurred.

The appellant (F.) argued for each party to bear their own costs or for a reduced award, citing excessiveness and limited means.

The Court of Appeal found no special circumstances to warrant either full indemnity costs or no costs, ordering the appellant to pay the respondent $50,000 in all-inclusive costs, consistent with costs following the result and reasonable expectations.

The appellant mother brought a motion for a stay of proceedings related to the Court of Appeal's decision, pending her leave to appeal application to the Supreme Court of Canada.

The motion judge granted the stay, finding serious issues of public importance arising from the dissenting opinion, a risk of irreparable harm to the children if the stay was denied (potential separation from the primary caregiver and determination of parenting rights based on gender-based principles in a non-Hague Convention country), and that the balance of convenience favored granting the stay.

The stay was conditional on the mother filing her leave to appeal application within 45 days.

The appellant mother travelled to Ontario from Dubai with her two children for a visit, but subsequently informed the respondent father that she would not return.

The father commenced proceedings in Ontario seeking a return order under s. 40 of the Children's Law Reform Act.

The trial judge declined jurisdiction under ss. 22 and 23 of the Act, ordered the children returned to Dubai, and dismissed the mother's constitutional challenges to s. 40(3).

The Court of Appeal dismissed the mother's appeal, finding no palpable and overriding error in the trial judge's assessment of the risk of serious harm under s. 23, and upholding the constitutionality of the return order provision under both division of powers and the Charter.

Following a trial where the applicant father successfully obtained an order for the return of the parties' children to Dubai, the court determined the issue of costs.

The father sought $486,000 on a partial and full recovery basis, relying on an offer to settle.

The respondent mother argued for no costs or a significantly reduced amount due to her limited financial means.

The court found the father was entitled to costs and had beaten his offer to settle, but fixed costs at $250,000 on a partial indemnity basis to ensure the award was proportionate and within the mother's reasonable expectations and ability to pay.

In a family law trial concerning whether two young children should be returned to Dubai, the respondent mother brought an application to adduce expert opinion evidence from a psychotherapist.

The proposed evidence concerned the potential emotional and psychological impact on infants separated from their primary caregiver.

The applicant father opposed the admission of the evidence.

Following a voir dire, the court applied the test for expert evidence and found the proposed expert was properly qualified and capable of giving fair, objective, and non-partisan evidence.

The court granted the application, permitting the expert to testify strictly on the potential impact of separation from a primary caregiver, but prohibited her from opining on the specific attachment of the children to either parent.

The appellant wife sought damages for conspiracy against her husband and his family, alleging they diverted business proceeds to reduce her support payments.

The motion judge granted partial summary judgment dismissing the conspiracy claim and awarded substantial costs against the wife.

On appeal, the Court of Appeal found that the motion judge erred by improperly bifurcating issues, misapplying the tort of conspiracy in the family law context, and making palpable factual errors regarding critical evidence.

The Court emphasized that the tort of conspiracy is a valuable tool to deter non-disclosure and ensure collectibility of judgments in family law.

The appeal was allowed, the partial summary judgment and associated costs orders were set aside, and a new trial was ordered before a different judge.

The respondent Anthony Novac and third-party respondents (collectively "Novac/Sonco") brought motions for a preservation order and security for costs, respectively, against the applicant Jennifer Ann Leitch.

These motions followed a prior judgment where Leitch was ordered to pay significant costs.

Anthony sought a preservation order for Leitch's assets, including the Caledon farm property, and alternatively, its transfer to him based on a trust claim.

Novac/Sonco sought security for costs and preservation of the farm and artwork.

Leitch opposed, wishing to sell the farm and arguing against priority for creditors and lack of grounds for a Mareva injunction.

The court dismissed Anthony's request for the farm's transfer but granted the preservation orders for the farm and artwork in Leitch's possession, finding that Leitch's financial circumstances and prior unreasonable conduct justified securing the substantial costs awards.

The applicant, Jennifer Ann Leitch, brought a motion for a declaration of conspiracy and damages, while the respondent, Anthony James Charles Novac, brought a cross-motion for a decrease in child and spousal support.

The applicant's motion was dismissed, and the respondent's motion was granted.

This ruling addresses the significant costs sought by the successful respondent and third-party respondents (Novac/Sonco) against the applicant.

The court considered the parties' offers to settle, the complexity of the issues, the applicant's unreasonable litigation strategy, and the proportionality of the costs.

The court rejected the applicant's arguments for reducing costs based on the respondent's alleged misrepresentation of income or her limited means, emphasizing that the applicant, a litigation lawyer, understood the risks.

In a high-conflict family law proceeding, the applicant wife brought a motion to compel further production of documents and answers to undertakings from the respondent husband and his father, alleging they conspired to conceal the husband's income and assets.

The court dismissed the request for pre-2012 documents as irrelevant to the conspiracy claim.

However, the court ordered the mass production of post-2012 emails, finding the respondents' search terms too limited, and ordered the production of certain solicitor-client files, finding the father had waived privilege by relying on a specific privileged communication to defend against the conspiracy claim.

The applicant in a family law case claimed a constructive trust in the respondent's house arising from an alleged 13-year cohabitation.

The respondent moved for summary judgment, arguing the claim was barred by the two-year limitation period under the Limitations Act, 2002.

The court dismissed the motion, finding that a constructive trust claim for an ownership interest in land is an 'action to recover land' governed by the ten-year limitation period under s. 4 of the Real Property Limitations Act.

The court also noted that if the Real Property Limitations Act did not apply, there would be a gap in the legislative scheme for family law constructive trust claims.