Marek Zygmunt Tufman

This is a costs ruling following a trial on a motion to change child support.

The applicant mother, self-represented, sought costs of $7,758.53 comprising self-represented legal time, lawyer fees, and travel disbursements.

The respondent father contested the costs claim on multiple grounds, including that the mother failed to prove lost opportunity cost and that certain expenses were not properly attributable to the trial.

The court awarded costs of $4,603.97, finding the mother was the successful party and that modern costs principles support awarding meaningful costs to self-represented litigants, particularly where the unsuccessful party engaged in unreasonable conduct such as non-compliance with disclosure orders.

The respondent father brought a motion to change a child support order made by Justice Penny Jones on January 10, 2012, which imputed income of $200,000 and ordered monthly child support of $2,572 plus retroactive arrears of $54,000.

The father claimed changed circumstances including bankruptcy, ill health, decreased advertising income, loss of driver's license, and separation from his former spouse.

The court found the father had deliberately failed to comply with disclosure orders and had been intentionally underemployed.

While accepting that changed circumstances existed, the court declined to vary the order retroactively to the original date.

Instead, the court imputed income of $100,000 per year (except 2013 where actual adjusted income was $107,991.43) based on the father's skills, experience, and failure to maximize earnings.

Arrears were fixed at $148,497.93 with payment suspended for one year, then payable at $1,900 per month commencing May 1, 2019.

Ongoing child support was set at $1,471 per month effective May 1, 2018.

An appeal from a trial judgment finding that the respondents had established title to a disputed strip of land by adverse possession.

The appellants challenged the trial judge's factual findings regarding the presence of a chain link fence that defined the boundary during the relevant ten-year period.

The appellants also sought to introduce fresh evidence consisting of expert opinion based on aerial photographs.

The Court of Appeal upheld the trial judge's decision, finding no palpable and overriding error in the factual findings and rejecting the motion to adduce fresh evidence as late-filed and insufficiently reliable.

The Plaintiffs sought summary judgment for a mandatory order directing the issuance of interment rights certificates, a permanent injunction, and damages for breach of contract related to burial plots for their parents.

The mandatory order was resolved by consent during the hearing.

The motion for a permanent injunction was dismissed due to insufficient evidence.

The court found the Minsk Congregation breached its agreement by failing to timely issue the interment rights certificate, causing the Plaintiffs prejudice in honouring their mother's wishes and Jewish customs.

Damages for loss of peace of mind were awarded to each Plaintiff against the Minsk Congregation, while the motion against Rabbi Spero was dismissed as he acted as an agent.

The creditor sought to lift a stay of proceedings under s. 69.4 of the Bankruptcy and Insolvency Act to allow a civil action for loans and punitive damages to proceed to judgment.

The creditor argued material prejudice and that the debt should survive discharge under s. 178(1)(e) due to fraudulent misrepresentation.

The court found no causal connection between the alleged misrepresentations and the creation of the debt, and that the pleadings lacked particularity for fraud.

The court also determined that the prejudice was subjective, not objective, and that lifting the stay would imperil the approved consumer proposal, which was more favourable to creditors than bankruptcy.

The motion was denied.

The defendants brought a motion challenging the continuation of an injunction that had been granted on an ex parte basis prohibiting them from soliciting or doing business with the plaintiff company's customers.

The court considered whether the plaintiffs satisfied their duty of full and frank disclosure required on ex parte motions under Rule 39.01(6) of the Rules of Civil Procedure.

The court found material non‑disclosure, including failure to disclose that the parties had previously merged their businesses and operated together for approximately two years, failure to explain material terms of an employment agreement containing restrictive covenants that had expired, and failure to disclose key details contained in an attached witness statement.

The court held that merely attaching exhibits without highlighting their material contents in the affidavit did not satisfy the disclosure obligation.

Because the plaintiffs failed to make full and fair disclosure of material facts, the injunction previously granted was dissolved.

The court addressed costs following a motion to set aside a purported ex parte default judgment that bore a forged judicial signature.

The court found that the plaintiffs had fabricated the judgment by copying and pasting the judge’s signature and had circulated the fake order to opposing parties and regulatory bodies as if it were a valid court judgment.

The court concluded that the conduct constituted a fraudulent and scurrilous attack on the administration of justice and amounted to reprehensible, scandalous, and outrageous behaviour.

Applying the principles governing full indemnity costs, the court held that the defendants were entitled to full indemnity costs as a form of chastisement and deterrence.

The plaintiffs were also barred from taking further steps in the proceeding until the costs were paid in full.

Following the dismissal of a bank’s summary judgment motion in an action alleging breach of trust and negligence, the plaintiffs and a co-defendant sought costs.

The court considered Rule 49 settlement offers but found they did not promote compromise, as they effectively required the moving party to abandon its motion.

Although the bank succeeded on the legal issue that no trust existed, a negligence issue remained requiring trial.

Given the bank’s unsuccessful motion and the limited value of the underlying claim, the court found the motion unnecessary and awarded substantial indemnity costs.

Costs of $15,000 were awarded to the plaintiffs and $15,000 to the co-defendant.

The defendant bank brought a motion for summary judgment seeking dismissal of claims alleging it negligently released $50,000 held in a bank account that had been ordered by a court as security for child support obligations.

After the death of the account holder, the Canada Revenue Agency issued a Requirement to Pay for tax debts and the bank remitted the funds.

The plaintiffs argued the funds should have been paid to satisfy child support arrears, and that the bank had been aware of efforts by the estate trustee and the Office of the Children’s Lawyer to arrange payment of those arrears.

The court held that significant factual issues remained, including whether the arrears should have been paid before the Requirement to Pay and whether the bank’s conduct created liability through negligence or estoppel.

Applying the summary judgment principles articulated in Combined Air Mechanical Services Inc. v. Flesch, the court concluded that the evidence could not be fully appreciated without a trial.