Louise L. Gauthier

The parties each brought motions regarding child support and section 7 expenses, both of which were dismissed.

The applicant subsequently sought costs of $9,250 on a full recovery basis, arguing she was the successful party because the respondent's motion was dismissed and she succeeded on the dominant issue of jurisdiction.

The respondent argued for no costs, as both parties failed on the merits.

The court agreed with the respondent, finding that neither party was successful and the presumption in Rule 24(1) of the Family Law Rules did not apply.

The court ordered that neither party be awarded costs.

The appellant appealed a summary conviction for dangerous driving and the imposition of a suspended sentence with 12 months’ probation.

He argued that the trial judge improperly restricted cross-examination of the complainant regarding a four‑month delay in reporting, failed to conduct a proper W.(D.) credibility analysis, relied on inconsistent witness testimony, drew improper negative inferences, and imposed an unduly harsh sentence.

The appellant also sought to introduce fresh evidence.

The court held that the proposed fresh evidence did not satisfy the test in Palmer, that the limitation on questioning was a strategic decision by defence counsel, and that the trial judge properly assessed credibility and the evidence as a whole.

The conviction and sentence were both upheld.

Following an earlier ruling denying the defendants’ request to amend a litigation timetable and seek a summary judgment date, the court addressed the issue of costs for the related proceeding.

The plaintiff sought over $10,000 in partial indemnity costs, asserting that the defendants’ failure to properly file motion materials and respond to correspondence caused unnecessary steps and expense.

The defendants argued that costs should be reserved pending a forthcoming motion for leave to bring summary judgment and, if awarded, should be minimal.

The court found that the defendants’ failure to properly advance their motion and respond to requests caused unnecessary work for the plaintiff.

However, broader costs relating to the proposed summary judgment proceedings were deferred, and the plaintiff was awarded a reduced amount for specific unnecessary steps.

The Crown appealed a summary conviction acquittal for operating a motor vehicle with blood alcohol exceeding the legal limit.

The trial judge had excluded breathalyzer results after finding the police failed to make the breath demand “as soon as practicable” under the Criminal Code and concluded that the delay constituted breaches of ss. 8 and 9 of the Charter.

On appeal, the court held the trial judge misapprehended the officer’s evidence regarding investigative steps taken before the arrest and breath demand, including safety checks and vehicle impoundment procedures.

The appellate court concluded that the approximately 15–17 minute delay was reasonable in the circumstances and that the demand was made as soon as practicable.

The breathalyzer evidence was therefore admissible and all necessary findings supported a conviction.

Following a lengthy high‑conflict custody and access trial, the court was asked to determine costs under Rule 24 of the Family Law Rules.

The trial resulted in joint decision‑making authority with the child’s primary residence remaining with the respondent and a detailed access regime for the applicant.

Both parties sought significant costs and relied on competing offers to settle under Rule 18(14).

The court held that success at trial was divided: the applicant obtained joint decision‑making authority and significant access, while the respondent secured primary residence and prevented the child from missing school for access.

Given the mixed outcome and findings that both parties behaved unreasonably during the litigation, the presumption of costs to the successful party was displaced.

Following a decision on multiple motions to change final orders regarding parenting and child support, both parties sought costs.

The court found that the plaintiff was more successful on the important issues and that the respondent's conduct had caused delay and increased costs.

The court ordered the respondent to pay costs of $8,000 plus HST to the plaintiff.

The defendants sought to adjourn their summary judgment motion and amend the litigation timetable to allow for the examination of their expert witness.

The plaintiff opposed the request, citing the defendants' failure to diligently pursue the motion and comply with the timetable.

The court found that the defendants caused the delay and failed to properly file their motion materials in accordance with Rule 37.08(1).

The court held there was nothing to adjourn and ordered that the defendants must obtain leave to bring any future summary judgment motion or motion to amend the timetable.

The plaintiff sustained injuries in a motor vehicle collision with a train and commenced two separate actions.

She brought a motion to consolidate the two actions.

The defendant municipality and a third party opposed consolidation, arguing it would cause prejudice by exposing them to new crossclaims and affecting a limitation period defence.

The court declined to consolidate the actions due to the potential prejudice, but ordered that the two actions be tried together to avoid multiplicity of proceedings.

The defendants brought a motion to dismiss the plaintiff's action for delay.

The action arose from a 1997 bicycle accident on the defendants' property, with the statement of claim issued in 2001.

The court found that the 13.5-year delay was inordinate and inexcusable, and that the plaintiff failed to rebut the presumption of prejudice, especially given that the defendants were now mentally incapable of instructing counsel.

The court exercised its inherent jurisdiction to dismiss the action.

The payor spouse brought a motion to reduce his temporary spousal support obligations due to a reduction in his income.

The parties agreed that a reduction was appropriate but disagreed on the quantum.

The court reviewed the competing Spousal Support Advisory Guidelines (SSAG) calculations provided by the parties.

The court rejected the payor's calculations because they improperly imputed income to the recipient by including the spousal support paid to her.

The court accepted the recipient's calculations, which accurately reflected the payor's current income and the recipient's correct income for support purposes.

The court ordered the payor to pay $504 per month in temporary spousal support, plus $50 per month towards arrears.

Following a family law trial involving spousal support, the successful party sought recovery of over $11,000 in legal fees and disbursements.

Both parties were self-represented at the trial and trial management conference, and each alleged misconduct by the other.

The court applied the presumption under the Family Law Rules that the successful party is entitled to costs but emphasized that costs should be reasonable and determined summarily.

Because costs should normally be addressed promptly after each step and the claimant had withdrawn a constructive trust claim late in the proceeding, the court declined to award earlier legal fees.

Instead, the court awarded a modest amount for trial participation and reimbursement of the trial record filing cost.

The applicant spouse sought an order restraining the respondent from withdrawing or transferring funds from his OMERS pension pending the disposition of her appeal concerning post‑retirement spousal support.

She relied on s. 40 of the Family Law Act and alternatively sought injunctive relief under the Rules of Civil Procedure to prevent depletion of the pension.

The court held that the appropriate forum for interim relief pending an appeal was the Court of Appeal under s. 134 of the Courts of Justice Act.

It also found the motion procedurally flawed and concluded that s. 40 of the Family Law Act was unavailable because the spousal support order was made under the Divorce Act.

In any event, the evidentiary record did not establish irreparable harm required for injunctive relief.

The responding party brought a motion seeking an interim and permanent reduction in child support and adjustments to post‑secondary expense contributions pending a motion to change a final support order.

The other party opposed the request and sought continued application of an earlier interim order, along with additional child support adjustments for a child attending university and another engaged in post‑secondary studies.

The court reviewed the jurisdiction to temporarily vary final or interim support orders under the Divorce Act and relevant jurisprudence.

It held that while courts may have jurisdiction in exceptional circumstances, such variations should only occur where there is urgent hardship, absurdity, or pressing need.

The evidence did not establish such circumstances, and the issues regarding entitlement to support and section 7 expenses were better addressed at the final hearing of the motion to change.

The City of Greater Sudbury brought an application for declarations that three structures on a property vested in the City due to tax arrears were fixtures forming part of the land.

The respondent, who operated a business on the property, argued the structures were chattels that it was entitled to remove.

The court applied the test for distinguishing chattels and fixtures, finding that the structures were affixed to the land, intended for the beneficial use of the land, and could not be easily dismantled and relocated.

The court declared the structures to be part of the land owned by the City and granted a permanent injunction preventing their removal.

The parties separated after a 22-year common law relationship.

The applicant sought retroactive and ongoing spousal support.

The respondent opposed, arguing the applicant was self-sufficient and had been terminated from her employment for cause.

The court found the applicant entitled to support given the length of the relationship and the income disparity.

However, because the applicant was terminated for cause, the court imputed income to her for a period equivalent to what her reasonable notice period would have been.

Spousal support was ordered based on the Spousal Support Advisory Guidelines, adjusted for the imputed income.

The plaintiff brought a motion to adjourn a scheduled jury trial in a medical malpractice action after learning that a key expert witness would be unavailable on the trial date.

The defendants opposed the adjournment, arguing the unavailability resulted from the plaintiff’s counsel failing to notify the expert of the agreed trial date in a timely manner.

The court considered the discretionary test for adjournments and the need to balance the interests of the parties and the administration of justice.

Although the court criticized the plaintiff’s counsel’s conduct as inexcusable, it concluded the plaintiff would suffer prejudice if forced to proceed without the expert’s live testimony and there was no evidence of non‑compensable prejudice to the defendants.

The trial was adjourned and directed to be rescheduled peremptory on the plaintiff.

Following a successful motion to change in which spousal support was terminated and the opposing claim for increased support was dismissed, the court addressed the issue of costs.

The successful party sought partial indemnity costs exceeding $20,000 plus HST and disbursements.

The opposing party argued that either no costs should be awarded or that costs should be limited to $5,000, emphasizing limited income.

Applying Rule 24(1) of the Family Law Rules and the principles governing reasonable costs awards, the court took a global approach, considering the modest complexity of the case, the two‑day trial, and the parties’ financial circumstances.

The court fixed fair and reasonable costs at $10,000 inclusive of HST, with disbursements to be addressed separately if the parties could not reach agreement.

On a family law motion concerning spousal support following a 41‑year marriage, the respondent husband sought support of $750 per month while the applicant wife proposed $266 per month.

The primary issue concerned the proper calculation of the wife’s income from a trailer park business and related expenses reflected in her income tax return and appraisal materials.

The court adjusted certain expense deductions and determined an appropriate income figure for the wife by selecting a midpoint between competing income calculations.

Applying the Spousal Support Advisory Guidelines, the court concluded the guideline range supported a monthly payment of approximately $486 to $496.

An interim order requiring the wife to pay $496 per month commencing October 1, 2014 was granted, with retroactive support to be determined at trial.

The moving party sought to terminate ongoing spousal support payable under a prior order following a long-term marriage.

Material changes included the termination of child support, increased income of the payor, reduced employment income of the recipient, and the recipient’s long‑term cohabitation with a new partner contributing significant household income.

Applying the Family Law Act and jurisprudence on compensatory and non‑compensatory support, the court found the recipient had been adequately compensated through equalization and ten years of support, and had achieved a reasonable standard of living in her new relationship.

The court concluded the economic consequences of the marriage had been equitably addressed.

Spousal support was ordered to terminate prospectively to allow the recipient time to adjust financially.

The applicant brought a motion to terminate her obligation to pay spousal support following her retirement and reduction in income.

The support order had been subject to a prior review process requiring updated medical evidence concerning the respondent’s alleged inability to work due to disability.

The court found that the review hearing contemplated in the earlier judgment had never properly occurred and that the parties had not presented updated viva voce evidence or current documentation.

In these circumstances, the court declined to make a final determination regarding entitlement or termination of support.

The matter was directed to proceed to a trial management conference to organize a review hearing with the possibility of viva voce evidence.