Mario D. Faieta

The respondent husband brought a motion to vary a preservation order under section 12 of the Family Law Act to allow him to obtain a mortgage to close the purchase of a pre-construction condominium.

The applicant wife opposed the motion, citing the husband's failure to disclose significant assets, including foreign bank accounts and real estate, and his history of transferring funds out of the country.

Applying the test for interlocutory injunctions, the court found a serious question to be tried regarding the equalization payment, a risk of irreparable harm due to potential dissipation of assets, and that the balance of convenience favoured the applicant.

The motion to vary the preservation order was dismissed.

The respondent mother brought a motion to vary a temporary parenting order to require the applicant father's parenting time to be supervised.

The father brought a cross-motion for make-up parenting time and police enforcement of the existing order, alleging the mother repeatedly denied his parenting time.

The court dismissed the mother's motion, finding no cogent evidence that the child was at risk of harm in the father's care.

The court granted the father's cross-motion, awarding make-up parenting time and ordering police enforcement under section 36 of the Children's Law Reform Act due to the mother's repeated breaches of the parenting order.

The applicant father brought an urgent ex parte motion for a restraining order against the respondent mother after she forcibly removed the children from their school in violation of a parenting order.

The court found a legitimate basis for the father's fear for the children's safety and granted a temporary restraining order prohibiting the mother from attending within 150 meters of the school.

The remainder of the motion, including a restraining order in respect of the father, was adjourned as urgency was not established.

The applicant father brought an urgent motion to strike the respondent mother's pleadings due to her persistent failure to comply with numerous court orders.

The court found that the respondent had willfully disobeyed orders regarding the return of property, provision of passwords, facilitation of communication with the children, cooperation with a section 30 assessment, school enrollment, sale of a rental property, and payment of costs.

Finding this to be an exceptional circumstance where the respondent adopted a 'scorched earth' approach, the court struck her Answer, except for her claims regarding parenting time, and ordered an uncontested trial for the remaining issues.

The applicant wife brought a motion for interim spousal support and an order prohibiting the respondent husband from obtaining further orders until he satisfied outstanding undertakings.

The court found the respondent failed to make sufficient efforts to comply with undertakings to produce contact information and mortgage applications.

The court ordered the respondent to take specific steps to obtain the documents and prohibited him from seeking further orders until the mortgage applications were produced.

The court also found the applicant established a prima facie case for interim spousal support, imputed an income of $300,000 to the respondent, and ordered him to pay $1,790 per month.

The respondent mother brought a motion for leave to re-litigate the children's school enrollment, despite a previous order barring her from bringing further motions until she complied with existing orders.

The court dismissed the motion, finding she remained in breach of numerous orders and was attempting to re-litigate a decided issue.

To ensure compliance with the prior order regarding school enrollment, the court granted the applicant father temporary sole decision-making responsibility for education and ordered costs against the respondent.

The applicant brought a motion to proceed to an uncontested trial and to sell the matrimonial home after the respondent failed to file an Answer for over three months.

The respondent requested an extension of time to file his responding materials.

The court dismissed the respondent's request, finding the delay inordinate and unexplained.

The court granted the applicant's motion, allowing her to proceed uncontested and ordering the sale of the matrimonial home, with net proceeds to be held in trust.

The parties, who separated in 2010, disputed the use of a jointly subscribed RESP to fund their daughter's university education.

The applicant father sought to split the RESP based on relative contributions, while the respondent mother sought sole carriage of the RESP to fund the education without providing further financial disclosure.

The court found it lacked authority to split the RESP.

Applying the three certainties of trust, the court held that the separation agreement created an express trust over the RESP for the children's education.

Given the high-conflict nature of the case, the court granted the mother sole authority to disburse the RESP funds for post-secondary expenses.

The applicant father brought a motion under the Hague Convention for the return of his three-year-old daughter to Florida.

The respondent mother had travelled to Toronto with the child in July 2021 and subsequently decided not to return.

The court applied the hybrid approach to determine the child's habitual residence immediately prior to the alleged wrongful retention in December 2021.

The court found that the focal point of the child's life was in Canada, where she had spent a significant portion of her life and where her primary caregiver and extended family resided.

As the child was habitually resident in Canada, the Hague Convention application was dismissed.

The applicant mother brought a motion under Rule 1(8) of the Family Law Rules to strike the respondent father's pleadings and impose a daily penalty of $3,500 for his ongoing failure to comply with multiple financial disclosure orders.

The court found the respondent in breach of numerous obligations, including the failure to deliver an income and business valuation report.

The court ordered that the respondent's pleadings (except regarding parenting) would be struck if he failed to deliver the required reports by a final deadline.

However, the court dismissed the request for a daily monetary penalty, holding that such a penalty cannot be imposed under Rule 1(8) absent a formal finding of civil contempt under Rule 31.

The applicant father brought a motion for an interim order for equal summer parenting time.

The respondent mother opposed the motion, arguing it was a backdoor attempt to vary the existing 5/14 year-round schedule and that the children would be at risk of harm.

The court found that the status quo for summer parenting time was established by the equal sharing arrangement from the previous summer.

The court reviewed the children's best interests, noting the mother's unsubstantiated allegations and lack of cooperation with assessments.

The court granted the father's motion for equal summer parenting time.

The respondent mother brought an urgent motion for the return of the parties' two young children and the suspension of the applicant father's parenting time.

The father had unilaterally withheld the children, claiming the mother was abusing them, and locked out the professional supervisor.

The court found the father's abuse allegations to be unsubstantiated and his conduct raised serious concerns about his stability and the children's safety.

The court ordered the immediate return of the children, suspended the father's in-person parenting time, and included a police enforcement clause.

In a family law proceeding involving claims for child support and a constructive trust, both parties brought motions to compel answers to undertakings, under advisements, and refusals from their respective Questionings.

The court applied the principles of relevance and proportionality under the Family Law Rules to determine which questions must be answered.

The court ordered the applicant to provide various financial documents, including business ledgers subject to a non-disclosure agreement, and ordered the respondent to disclose legal and accounting fees, while dismissing requests for irrelevant banking and business interference information.

The plaintiff brought a motion for summary judgment in a mortgage enforcement action against the defendant company and its alleged director.

The company opposed the motion, arguing the mortgage was a 'fraudulent instrument' under the Land Titles Act because the director fraudulently held herself out as an officer of the company to obtain the mortgage.

The court granted summary judgment, finding that even if the allegations of fraud were true, the director was not a 'fictitious person' and did not hold herself out to be the registered owner of the property, meaning the mortgage did not meet the statutory definition of a fraudulent instrument.

The applicant father brought a motion for the sale of a jointly owned rental property.

The respondent mother agreed to the sale but insisted it be sold privately to her mother, without a formal offer or specific price, arguing it would save real estate commission.

The court found no malicious, vexatious, or oppressive conduct by the applicant in seeking an open market sale.

Conversely, the respondent's demand to sell only to her mother was deemed oppressive.

The court also addressed the respondent's failure to attend the motion, affirming its duty to proceed justly.

The motion was granted, and the court ordered the rental property to be listed for sale on the open market with specific terms for realtor selection and cooperation.

The Applicant mother sought a temporary parenting order to resume a fixed parenting schedule, including overnight time, after two impaired driving incidents with children in the car.

The Respondent father had largely withheld the children due to safety concerns related to her alcohol abuse.

The court considered the children's best interests, the status quo, and the mother's efforts towards sobriety.

The court granted a modified parenting schedule with overnight access but imposed strict conditions, including supervision by the maternal grandfather for two months and mandatory use of the Soberlink Alcohol Monitoring System.

The applicant mother brought a motion seeking sole decision-making authority for the child, discretion for parenting time, return of the child's documents, cooperation for passport renewal, and financial disclosure from the respondent father.

The court found a material change in circumstances since the previous temporary order, noting the child's strong desire for no contact with the father due to his past behaviour.

The court granted the mother temporary sole decision-making, made parenting time at the child's discretion, ordered the return of documents, dispensed with the father's consent for passport renewal, and ordered the father to provide outstanding financial disclosure.

The case was directed to a case conference and combined settlement/trial management conference for final resolution.

The applicant sought an annulment of her marriage to the respondent on grounds including non-cohabitation, non-consummation, and marriage under pressure due to religious and cultural beliefs.

The court granted the annulment, finding that the applicant's refusal to consummate the marriage was a predictable and rational consequence of her sincerely held religious belief that consummation should not occur until all stages of an Islamic marriage ceremony were completed, constituting an "invincible aversion" as per common law principles applied contextually to cultural norms.

The applicant, a mother, sought a restraining order against her adult son due to violent behaviour.

The motion was brought without notice to the respondent.

The court dismissed the application, finding that a restraining order was not available under the Family Law Act as the parties were not in a conjugal relationship.

Furthermore, the court declined to expand the scope of section 35(1) of the Children's Law Reform Act, determining that it is intended to support parenting orders, which was not the case here.

The court suggested that the applicant consider seeking a peace bond under the Criminal Code as an alternative remedy.

Following motions for an interim parenting order and a Form 14B motion for fresh evidence, the successful respondent mother sought costs on a substantial indemnity basis.

The applicant father argued no costs should be awarded or they should be reserved to the trial judge.

The court rejected the father's arguments, finding his settlement offers unreasonable and his Form 14B motion materials misleading.

The court awarded the respondent mother costs fixed at $23,000 inclusive of taxes and disbursements.