Mark W. Smith

This costs endorsement followed a 10-day trial addressing parenting, child support, spousal support, imputation of income, and equalization of net family property.

The court found overall success was divided, with the applicant succeeding on equalization and imputation of income, and the respondent succeeding on parenting issues, spousal support, and post-separation adjustments.

Both parties were found to have behaved unreasonably—the applicant by not paying child support and the respondent by failing to provide complete financial disclosure and clarity on positions.

Consequently, the court ordered that each party bear their own costs.

The moving party sought an extension of time and leave to appeal a family arbitration award that ordered her to pay $112,140 in retroactive spousal support.

The court granted the extension of time, finding the delay was short, explained, and caused no prejudice.

However, the court dismissed the motion for leave to appeal, concluding the moving party failed to demonstrate that the arbitrator made any error of law regarding the recipient's needs, delay, or hardship to the payor.

In the context of ongoing oppression remedy actions, the plaintiffs sought leave to amend their pleadings on the eve of the continuation of the trial, necessitating an adjournment.

The plaintiffs subsequently sought an adjournment of their own motions to amend in order to cross-examine a deponent.

The defendants sought substantial indemnity costs for the trial preparation thrown away and the motions, payable as a condition precedent to the plaintiffs proceeding with their motions.

The court found the plaintiffs' conduct in the litigation, including late decision-making and failing to properly plead discoverability, unnecessarily lengthened the proceedings and warranted sanction.

The court awarded the defendants $37,450 in substantial indemnity costs, payable by the plaintiffs as a condition precedent to proceeding with their motions to amend.

This endorsement from a trial management conference addresses ongoing issues in consolidated actions, including delays in expert report completion by Welch LLP and concerns regarding the capacity of individual litigants, John McMurtry and Mildred McMurtry, to testify.

The court ordered Welch LLP to attend a continuation of the conference to provide a status update and set new deadlines, and noted a motion for a litigation guardian for John McMurtry was scheduled.

The applicant brought a motion seeking joint custody, child support determination, and sharing of childcare expenses.

The court granted interim sole custody to the respondent, citing the parties' inability to cooperate and the applicant's non-compliance with disclosure orders.

The applicant's income was imputed at $130,000 for child support purposes due to failure to provide pay stubs.

The court capped the applicant's contribution to childcare expenses at $350 per month, finding the respondent's unilateral increase in costs unreasonable.

The applicant's claims for adjournment and mobility were dismissed, and the respondent was awarded $6,500 in costs.

At a trial management conference for two related actions, the court addressed delays in obtaining a joint expert report on corporate finances and concerns regarding a party's capacity to testify following a stroke.

On consent, the court ordered peremptory deadlines for the production of financial documents to the expert and for the completion of the expert's report.

The court also ordered, on consent, that the party who suffered a stroke undergo an assessment to determine whether he is a person under a disability requiring a litigation guardian under the Rules of Civil Procedure.

Appeal from a Superior Court judgment determining ownership of disputed shares in a family company, Mic Mac Realty (Ottawa) Ltd. The trial judge found that the appellant failed to establish that his father had gifted the shares to him inter vivos or that the gift was completed by the executors.

Accordingly, the shares fell into the residue of the estate and belonged to the respondent as residuary beneficiary.

The trial judge also found the respondent's claim was not statute barred and held that the respondent held the shares in constructive trust for the appellant.

The appeal was dismissed.

This trial management conference addressed the need for financial evidence and share valuation for ongoing trials involving multiple parties and actions.

Due to the complexity of re-creating financial records and appraising real property, the parties consented to an order for the joint retention of a bookkeeper and an appraiser.

The trials scheduled for May 15, 2017, were adjourned, and further trial management conferences were scheduled to monitor progress.

Costs for the bookkeeper and appraiser services are to be paid from trust monies.

Following a motion to change regarding spousal support and post-secondary educational expenses, both parties sought costs.

The applicant claimed $34,397.90 and the respondent claimed $36,958.23.

The court found divided success, as the applicant did not succeed in obtaining retroactive repayment of support and the respondent did not succeed in her claim for educational expenses.

Noting that neither party obtained a final order more favourable than their offers to settle, and applying the principle that costs must be decided at each step, the court ordered that each party bear their own costs.

The applicant brought a motion to change a final order to terminate spousal support, citing a material change in circumstances due to his job loss and the respondent's increased income.

The respondent brought a cross-motion for retroactive section 7 expenses for the children's post-secondary education and a motion for contempt regarding the applicant's failure to maintain life insurance.

The court found a material change in circumstances and terminated spousal support.

The court dismissed the claim for retroactive section 7 expenses due to the respondent's significant delay and the children's ability to fund their own education.

The contempt motion was also dismissed because the original order lacked a specific amount for the life insurance policy.

Following a decision on share ownership, the court held a trial management conference to determine next steps in the consolidated actions, which include an oppression remedy claim.

The court directed the parties to consider whether a stay motion will be brought pending an appeal of the initial decision, how to efficiently gather and present extensive financial evidence, and the potential for a mid-trial settlement conference.

The conference was adjourned to allow counsel to obtain instructions.

Mildred McMurtry sought a declaration of ownership for 10 shares in Mic Mac Realty (Ottawa) Ltd. (MMR), alleging they were part of her late husband's estate, of which she was the residuary beneficiary.

Her son, John McMurtry, claimed the shares were a gift from his father or completed by him as an executor.

The court found no completed gift and that the shares remained part of the estate.

However, Mildred's claim for ownership was barred by the equitable doctrines of laches and estoppel due to her delay and acquiescence, and a constructive trust was imposed, holding the shares for John's benefit.

The court also addressed the nature of declaratory relief and limitation periods.

Following dismissal of preliminary motions seeking leave to amend pleadings and adjourn trial, the court was required to fix the quantum of costs previously awarded on a substantial indemnity basis.

The moving parties argued that costs should instead be assessed on a partial indemnity basis and that costs for an earlier adjournment appearance before another judge should be included.

The court held that the scale of costs could not be reconsidered absent an appeal and that costs related to the earlier appearance remained to be determined later.

The court fixed substantial indemnity costs payable to the responding parties for preparation and attendance on the motions.

Payment was ordered within 30 days pursuant to rule 57.03(1) of the Rules of Civil Procedure.

During a consolidated family corporate dispute involving multiple related actions and a counterclaim, the moving parties sought leave at the outset of trial to amend their pleadings and requested an adjournment of the trials.

The proposed amendments largely consisted of legal arguments relating to whether the plaintiff’s oppression remedy claim should instead proceed as a derivative action under the Business Corporations Act.

The court held that the motion lacked evidentiary support, was brought far too late in a case‑managed proceeding, and raised arguments that did not require pleading amendments.

The court also refused the requested adjournment, finding the moving parties had failed to pursue procedural remedies earlier regarding outstanding undertakings and trial scheduling concerns.

All motions were dismissed and substantial indemnity costs were awarded to the responding parties.

The court determined costs following three motions involving the release of real estate trust funds, summary judgment against one party, and the appointment of an interim receiver/manager.

Success on the trust fund release motion was divided and no costs were ordered.

The summary judgment motion and the motion for appointment of an interim receiver were both dismissed, resulting in clear success for the responding parties.

Applying the principles governing costs and Rule 57.01 of the Rules of Civil Procedure, the court fixed costs of $15,000 for each successful party.

The court also directed reimbursement from trust funds for municipal tax arrears previously paid.