M.A. Cummings

The plaintiff, Tracey Lynn Kirstine, sought costs after successfully obtaining an interlocutory injunction.

The defendants argued that costs should be reserved to the trial judge or that their offers to settle should be considered.

The court, applying Rule 57.03(1) of the Rules of Civil Procedure, determined that an immediate costs award was appropriate, particularly given the defendants' breach of a prior order.

The court awarded the plaintiff $65,000 in all-inclusive costs, with 75% payable jointly and severally by Neil Kirstine and Jeremy Ellis, and the remaining balance split equally and severally among Tone Valeriote, Christine Brandt, and Donna Sparks.

The plaintiff and defendants were involved in a real estate partnership that was terminated.

The plaintiff obtained an interim interlocutory injunction restraining the defendants from certain actions, including using the partnership's name and social media.

The plaintiff brought a motion to continue the injunction and for a non-solicitation order.

The court found that the defendants had breached their partnership duties and failed to comply with the interim order.

Applying the RJR MacDonald test, the court granted the motion to continue the injunction and ordered non-solicitation.

Following a trial on child and spousal support, the respondent sought to re-argue the applicant's entitlement to spousal support.

The court dismissed this as an abuse of process, finding no evidentiary basis to infer post-separation income increases.

On the issue of costs, the court found that the respondent conducted the eight-year litigation in bad faith by failing to disclose relevant documents, stonewalling the income valuation process, and habitually breaching court orders.

The court awarded the applicant costs of $193,000 on a full recovery basis under Family Law Rule 24(8).

The plaintiff and defendants were partners in a real estate business.

Following the termination of the partnership, the plaintiff brought an application for an injunction, alleging that the defendants breached their duties as partners by locking her out of accounts and making misleading social media posts about the business.

The court granted an interim injunction pending an adjournment for cross-examinations, ordering the defendants to cease using the partnership name and to post an agreed message concerning the dissolution.

The applicant and respondent separated in 2012.

The central issue at trial was determining the respondent's income for child and spousal support purposes from 2017 onwards, given his self-employment as a farmer.

The court accepted the applicant's expert evidence that the respondent's income should be adjusted to reflect actual depreciation of farm equipment rather than the Capital Cost Allowance permitted for tax purposes.

The court also imputed income for personal benefits derived from the farming operation, including rent-free housing, vehicle use, and farm produce.

The court ordered support to be calculated based on these adjusted income figures, averaging the income for future years due to the fluctuating nature of farm income.

The parties sought costs following motions primarily concerning financial disclosure and an accounting of children's education funds.

The court noted the long history of the hard-fought case and the difficulty in evaluating success, as both parties took unreasonable positions on certain issues.

The court reserved the costs of the respondent's disclosure motion to the trial judge, who would be best positioned to assess its necessity.

However, the court awarded the applicant modest costs of $750 for his successful cross-motion to obtain an accounting of the education funds.

The respondent, Laura McCombe, brought a motion for disclosure, and the applicant, David McCombe, brought a cross-motion for disclosure and suspension of spousal support.

The motions arose from a previous disclosure order and an underlying motion to change spousal and child support.

The court addressed the ongoing disclosure disputes, emphasizing the need for "critically necessary" information to determine income, particularly for the self-employed applicant.

The court dismissed the applicant's request to suspend spousal support due to outstanding disclosure.

It ordered a structured process for the applicant to provide specific "critically necessary" financial documents and an explanation for an unconventional property purchase.

The respondent was ordered to provide a proper accounting of educational trust funds.

The plaintiffs sought an interlocutory injunction to prevent the defendants from breaching non-competition, non-solicitation, and trade name use covenants following the sale of a business.

The court applied the modified injunction test for restrictive covenants, finding a strong prima facie case of breach by the defendants, directly and indirectly through an employee and his company.

The court drew an adverse inference from the defendants' failure to provide an affidavit from the key employee.

Irreparable harm was presumed and also found on evidence of lost sales and market confusion.

The balance of convenience favored the plaintiffs, as the defendants' alleged breaches were deliberate.

The injunction was granted, along with an order for production of the defendants' general ledger and customer lists.

Following repeated adjournment requests by the applicant in a family trial and the eventual adjournment after medical evidence indicated the applicant was unfit to attend, the respondent sought costs thrown away.

The court reviewed the principles governing costs thrown away under s.131 of the Courts of Justice Act and Rule 24 of the Family Law Rules.

Even absent fault, a party responsible for an adjournment may be required to compensate the opposing party for wasted trial preparation.

The court found the applicant responsible for the adjournment and awarded the respondent full indemnity costs thrown away for wasted preparation and court attendances, together with partial indemnity costs of the costs motion.

Following a trial in a construction lien action in which the plaintiff obtained judgment exceeding its offer to settle, the court considered competing costs submissions.

The plaintiff sought substantial indemnity costs relying on Rule 49 of the Rules of Civil Procedure and the defendants’ conduct during litigation.

The court held the plaintiff was presumptively entitled to partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

After considering Rule 57.01 factors and proportionality, the court reduced the requested fees but awarded substantial overall costs.

The defendants were ordered to pay $54,088.99 in costs inclusive of HST and disbursements.

The plaintiff contractor brought a claim under the Construction Lien Act for unpaid amounts on a residential renovation project, including significant extras billed on a time and materials basis.

The defendant homeowners argued the contract was for a fixed price and counterclaimed for defective and incomplete work.

The court found the plaintiff credible and the defendants lacking in credibility, concluding the defendants had agreed to the extras.

The court dismissed the majority of the counterclaim, allowing only a minor set-off conceded by the plaintiff, and awarded the plaintiff $44,658.90 including pre-judgment interest.

The court determined the appropriate costs award following earlier proceedings between a farming corporation and a contractor.

The defendant had previously made a timely offer to settle that was more favourable to the plaintiff than the ultimate decision, which weighed strongly in favour of a costs award to the defendant.

The court also recognized that the defendant achieved substantial success in reducing the applicable interest rate from 24% to 5%.

However, prejudice suffered by the plaintiff due to the defendant’s conduct prior to initiating the application justified a partial reduction of the defendant’s claimed costs.

The court therefore reduced the defendant’s claimed costs and ordered payment of the adjusted amount.

The defendant brought a motion under Rule 19.08 of the Rules of Civil Procedure to set aside a 2005 default judgment, but ultimately limited the relief sought to varying the contractual interest rate imposed by the judgment.

The court applied the three‑part test governing motions to set aside default judgments, including delay, explanation for the default, and the existence of an arguable defence.

While the defendant failed to adequately explain the delay and prejudice existed due to the passage of time, the court found an arguable defence regarding the 24% contractual interest rate claimed by the plaintiff.

Evidence showed the parties had a longstanding neighbourly farming relationship in which interest had never historically been charged and there was no clear agreement to pay interest at that rate.

The court concluded that the defendant had not agreed to the contractual interest and varied the judgment to apply interest at 5% per year instead.

Following an eleven‑day custody and access trial, the applicant father was entirely successful and was awarded primary care of the children.

The court found that the respondent mother's conduct caused parental alienation, denied access, and unnecessarily prolonged the litigation.

Although the court declined to find bad faith under the Family Law Rules, it concluded the respondent had acted unreasonably and that the applicant had bettered his offer to settle.

Balancing the factors under Rule 24, the court ordered costs on a full recovery basis.

The respondent was ordered to pay legal fees, disbursements, and her unpaid share of parenting coordinator fees.

Following a bifurcated family law trial concerning custody and access, the court determined the appropriate parenting arrangement for two children of the marriage.

Although the children had primarily resided with the mother since separation, the evidence established a sustained pattern of parental alienation, denial of access, and non‑cooperation with parenting coordination and court processes by the mother.

The court found the father to be a credible and cooperative parent committed to facilitating the children's relationship with the other parent and adhering to the maximum contact principle.

Applying the best interests of the children test under the Divorce Act and the Children’s Law Reform Act, the court concluded the mother's conduct was harmful to the children’s relationship with their father and unlikely to change.

Primary care of the children was therefore awarded to the father with a structured parenting plan.

The applicant father brought a contempt motion in a family law proceeding alleging multiple breaches of prior court orders by the respondent mother.

The court had previously found the respondent in contempt for failing to produce counselling records, failing to comply with a parenting schedule requiring attendance at children’s baseball activities, and failing to transfer ownership of equipment as ordered.

At sentencing, the court determined that some contempt had been belatedly purged while other breaches remained incapable of remedy.

The court imposed financial penalties totalling $800 for the contempts and awarded substantial full recovery costs to the applicant due to the respondent’s bad faith delay and repeated failure to comply with disclosure obligations.

Additional costs were ordered against the respondent and partially against her counsel for adjournments and procedural delays.

Following a commercial lease trial between a tenant applicant and a landlord respondent, the court was required to determine the appropriate costs award.

The tenant sought $185,421.51 in post‑trial costs arising from extensive factual analysis required due to the landlord’s inadequate maintenance records and litigation conduct.

The court held that while the tenant had beaten settlement offers and was largely successful, the circumstances did not justify substantial indemnity costs.

Considering the parties’ conduct, the scale of the litigation, and the principles in Rule 57 of the Rules of Civil Procedure, the court fixed costs on an enhanced partial indemnity basis.

Following a prior partial judgment concerning interpretation of a commercial lease, the court addressed the landlord’s accounting for additional rent allegedly representing property management and maintenance expenses.

The lease did not permit standardized management or administrative fees, and the landlord bore the onus of proving reasonable and proper expenses actually incurred.

The court found the landlord’s records unreliable and insufficient, noting undated documents, inconsistent time sheets, duplicated entries, and indications that records were retrospectively created.

Because the landlord failed to demonstrate that the claimed work was performed or that the charges reflected commercially reasonable costs, most management-related claims were disallowed.

The court concluded the tenant had overpaid additional rent over four years and ordered a refund of $128,712.31, with costs submissions to follow.

The applicant brought a motion seeking an interim variation of a prior custody and access order following an incident where the respondent became severely intoxicated while caring for the parties’ young children, leaving them unsupervised and causing police involvement.

The court found that the seriousness of the incident constituted a material change in circumstances affecting the best interests of the children under s. 29 of the Children’s Law Reform Act.

While rejecting the applicant’s request to restrict the respondent to day-only supervised access by a professional supervisor, the court ordered a temporary variation requiring supervised access with the respondent’s parents and continued alcohol monitoring through a SCRAM bracelet.

The court imposed a regime allowing limited overnight access and ordered that any monitored alcohol consumption would immediately suspend access.

The order was subject to review after six months.