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.

The appellant father appealed a final restraining order granted by a motion judge during a motion for temporary relief.

The respondent mother had sought a temporary restraining order after being violently attacked by the appellant's father.

Neither party requested a final restraining order, and both were content with the temporary order in place.

The Divisional Court allowed the appeal, finding that the motion judge erred in law by granting a final order on an interim motion without giving the parties an opportunity to make submissions.

The temporary restraining order was reinstated.

The applicant brought an urgent motion to preserve assets pending equalization of net family property, alleging the respondent and his mother breached a consent order by encumbering a property and listing it for sale.

The court found no breach of the consent order as the charge was registered minutes before the order was made.

The court declined to order mortgage funds be paid into court but ordered an accounting of the funds, restricted the alienation of the property without notice, and directed that 50% of the respondent's project management fees be remitted to the Family Responsibility Office for support arrears.

The applicant brought a motion in a family law proceeding to add the respondent's mother as a party, compel oral questioning, obtain corporate disclosure, and secure a certificate of pending litigation (CPL) and preservation orders against certain properties.

The applicant alleged the respondent was dissipating assets and using his mother and her corporation to shield equity from equalization.

The court granted the requests to add the mother as a party, ordered oral questioning and disclosure, and issued a CPL against one property, finding a triable issue regarding the applicant's interest.

The request for a preservation order was dismissed as the properties were not legally owned by the respondent.

The Children's Aid Society brought a motion for specified access between a child and his maternal grandparents.

The child's foster parent brought a cross-motion to be added as a party to the child protection proceeding.

The child had been in the foster parent's care for over two years and expressed a strong desire not to have contact with the maternal grandparents.

The court granted the foster parent's motion to be added as a party, finding that the foster parent had a legal interest, was capable of putting forward a plan of care, and was necessary to determine the issues.

The court dismissed the Society's motion for specified access, ordering instead that any access between the child and the maternal grandparents be subject to the child's wishes, as confirmed by the Office of the Children's Lawyer.

The mother brought a motion to change a 2012 joint custody order, seeking sole decision-making responsibility and primary residence of the 15-year-old child.

The child had experienced severe mental health struggles, including suicide attempts, and expressed a strong desire not to see the father due to his anger and controlling behaviour.

The father alleged parental alienation by the mother.

The court found a material change in circumstances and determined it was in the child's best interests to grant the mother sole decision-making responsibility.

The father's parenting time was ordered to occur only if initiated by the child, and he was prohibited from accessing the child's health and educational records without her consent.

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 applicant sought costs following her successful motion to confirm a prior parenting order and a subsequent request for directions.

The court found that the respondent's inappropriate conduct, including failing to return the children as ordered and denying the existence of the order, necessitated the proceedings.

The applicant was largely successful on the motions and entirely successful on the request for directions.

The court awarded the applicant costs of $7,296.69 on a partial indemnity basis for the motions and $800 on a substantial indemnity basis for the request for directions, totaling $8,096.69.

In a divorce action, the applicant brought a motion to find the respondent in contempt for failing to comply with a prior disclosure order.

The respondent brought a cross-motion for additional disclosure from the applicant.

The court dismissed the contempt motion, finding that the respondent's delayed and partially incomplete disclosure was not a wilful omission.

The court also dismissed the respondent's disclosure motion, noting that most requests were either answered or unnecessary, and left the remaining items for a future settlement conference.

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.