Marlene J. VanderSpek

The applicant brought a summary judgment motion seeking enforcement of an accepted offer to settle dated July 15, 2022, which the respondent Kevin Niessen accepted on September 8, 2023.

The offer included an equalization payment of $950,000 to be satisfied through transfer of property.

The respondent failed to pay the equalization payment within the required 90-day period.

The applicant also sought declarations regarding beneficial ownership of properties and enforcement of the equalization payment against properties owned by Rita Niessen and 20 Valley Communities Inc. The court found that the respondent had engaged in a pattern of asset transfers and encumbrances to avoid satisfying the equalization payment, including fraudulent transfer of jointly-owned property.

The court granted summary judgment in favour of the applicant, enforcing the settlement terms and declaring the respondent to be the beneficial owner of the disputed properties.

The applicant sought child and spousal support from the respondent following their separation in October 2018.

The respondent claimed he had no income and was not legally entitled to work in Canada.

The court found that the respondent had been working at a family-owned grocery store since 2021 and had diverted income through family members to obscure his earnings.

The court imputed income of $70,000 annually and ordered retroactive child support of $78,232 plus prospective monthly payments of $1,397.

No spousal support was awarded based on the imputed incomes of both parties.

The respondent husband moved for partial summary judgment or a decision on a question of law regarding whether a pay equity award received by the applicant wife should be included in her net family property.

The court found that the portion of the pay equity award attributable to pre-separation wages, less amounts for injury to dignity, interest, and post-separation work, forms part of the applicant’s net family property.

The court ordered the applicant to pay costs to the respondent.

The applicants (maternal grandparents) sought custody of their grandson, Grayson, from his mother (respondent).

The court assessed the best interests of the child, considering factors such as stability, the child's views and preferences, the caregivers' abilities, and exposure to family violence.

The court found that the child's primary residence should remain with the grandfather due to the mother's transient lifestyle, inconsistent care, and exposure of the child to domestic conflict.

Sole decision-making responsibility was granted to the grandfather, with a requirement to consult the mother.

Parenting time for the mother was ordered to commence via videoconference, with reconciliation counselling mandated before in-person visits.

The request for child support from the mother was dismissed due to her current stay-at-home status and pregnancy.

This costs endorsement followed motions heard over two days in January 2022, where the applicant sought substantial indemnity costs and the respondent sought no costs.

The court found that both parties had divided success across the 11 issues raised in the underlying motions, which included parenting, support, income imputation, partition and sale, and disclosure.

Neither party's offers to settle engaged Rule 18(14) nor significantly influenced the costs decision under Rule 24.

Given the fairly evenly divided success, the court determined it was fair and reasonable for each party to bear their own costs, resulting in no costs order.

This decision addresses interlocutory motions concerning parenting time, decision-making responsibility, child and spousal support, property division (specifically partition and sale of a jointly owned property), and disclosure.

The court declined to change the temporary parenting order or the children's school, maintaining the status quo.

Joint decision-making was ordered, and a mutual alcohol prohibition during parenting time was imposed.

The court imputed income to both parties for support purposes, using the applicant's actual income and the respondent's income as determined by his expert.

Child and spousal support were ordered.

The applicant's request for partition and sale of a jointly owned property was dismissed, as it would prejudice the respondent's constructive trust claim, which was deemed a genuine issue for trial.

Further disclosure orders were made regarding the respondent's financial records and property appraisals.

The parties separated and proceeded to a matrimonial trial to resolve outstanding issues regarding property division, section 7 expenses, and parenting matters.

The court determined the values of disputed assets for the Net Family Property calculations and ordered the respondent to pay his share of the children's hot lunches.

The applicant was granted the right to travel internationally without the respondent's consent, but her request for broad mobility rights was restricted to a 50-kilometre radius from Grimsby.

The court dismissed the respondent's claim for occupation rent and the applicant's claim for an unequal division of the matrimonial home's post-separation increase in value, finding that the high threshold for unconscionability under section 5(6) of the Family Law Act was not met.

The parties brought three competing motions in a family law proceeding, primarily dealing with financial disclosure and property issues.

The court ordered the applicant to provide specific financial documents, including an Equifax report, loan details, and a 2014 Notice of Assessment.

However, the court dismissed several requests regarding the valuation, repair, and sale of a jointly-owned 2010 Acura MDX, as well as the distribution of insurance proceeds, finding these to be triable issues related to the equalization of net family property that should not be dealt with on an interim motion.

No costs were awarded due to divided success.

This decision addresses the costs of motions brought by the respondent seeking specific parenting time, and a cross-motion by the applicant regarding access.

The applicant successfully argued that the motions were not urgent and should be adjourned pending a case conference.

The court awarded costs to the applicant, finding that the respondent's motion was premature and that the applicant's offer for an early case conference was rejected.

Costs were fixed at $2,000, inclusive of HST and disbursements, payable by the respondent within 30 days.

This decision addresses two motions in a family law matter concerning parenting time and access for three children.

The respondent sought specific parenting time, while the applicant sought access according to the children's wishes and, as a preliminary matter, an adjournment of both motions until a case conference.

The court considered the urgency of the motions, noting the respondent had not seen the children for six weeks due to the applicant's unilateral suspension of access.

However, the court found that neither motion met the threshold for urgency under sub-rule 14(4.1) of the Family Law Rules to be heard prior to a case conference, as a conference could have been scheduled earlier.

Consequently, both motions were adjourned without a date, and the parties were directed to secure an early case conference.

The respondent sought to restore parenting time after the applicant unilaterally suspended access due to pandemic concerns.

The applicant filed a cross-motion for a new access schedule, pandemic-related terms, and a restraining order.

The court adjourned the primary access motions but granted a one-year restraining order against the respondent based on corroborated allegations of abuse.

The court also issued temporary parenting time orders, vacating a prior consent order and establishing a new schedule and exchange protocol, while largely rejecting the applicant's detailed pandemic-specific requests.

This trial concerned the nature of a father's access to his 8-year-old daughter, sole custody with the maternal grandmother, and child support.

The father sought unsupervised access, while the grandmother requested continued supervised access at a centre.

The court, applying the "best interests of the child" test, found that the father, despite cognitive limitations, was capable of parenting in a secondary role with support.

The court ordered expanded access for the father, transitioning from supervised by his parents to monitored, with a future review for unsupervised overnight access.

Counselling for the child and parties was also ordered, and child support payments were adjusted and made retroactive.

The applicant mother brought a motion to change seeking to terminate the respondent father's access to their child and for child support, including imputing income to the father.

The father had a history of drug abuse, criminal charges, and inconsistent access, but had recently stabilized his life, obtained full-time employment, and started a new family.

The court found a material change in circumstances but declined to terminate access, emphasizing the child's right to a relationship with her father.

The court ordered reconciliation counselling followed by supervised access.

On child support, the court declined to impute income, finding the father was not intentionally underemployed, and ordered ongoing and retroactive child support based on his actual income back to January 1, 2014.

The moving party brought a motion to change a prior support order, seeking a reduction of child and spousal support and the fixing and payment schedule of arrears.

The responding party opposed the reduction and sought increased spousal support and additional orders regarding insurance and benefits.

The court applied the material change test from Willick v. Willick and found that the moving party failed to establish a material change in circumstances since the original trial decision.

The court maintained the previously imputed income of $90,000, confirmed ongoing child support for an adult child pursuing graduate studies, and adjusted spousal support within the Spousal Support Advisory Guidelines.

The motion to reduce support was dismissed and the prior order largely remained in force.

Following a family law trial concerning custody, mobility, and child support, the successful party sought costs after obtaining sole custody and permission to relocate with the child to another province.

The court applied the presumption under rule 24(1) of the Family Law Rules that a successful party is entitled to costs.

Although an offer to settle had been made, the court held that the final order was not as favourable as the offer and therefore declined to award substantial indemnity costs under rule 18.

The court also applied rule 24(10) and appellate authority restricting recovery of costs for earlier procedural steps where no costs order had been made.

Costs were fixed at a reduced amount reflecting only trial-related steps and submissions.

The applicant mother and respondent father sought a determination on custody, access, child support, and section 7 expenses for their four-year-old child.

The mother sought sole custody, while the father sought joint custody.

The court found that despite past conflict, both parents were loving and the child was thriving in their care.

The court ordered joint custody with a detailed access schedule, imputed an income of $30,000 to the father for child support purposes, and ordered the parents to equally share section 7 expenses including Montessori school tuition.