Marta Anna Siemiarczuk

This is a costs endorsement following the dismissal of the applicant's motion for financial disclosure.

The applicant, Barbara Cohen, sought extensive financial disclosure from the Estate of Sidney Cohen and other parties, which the court found to be an attempt to circumvent a prior bifurcation order by Justice Audet.

The court dismissed the disclosure motion and subsequently awarded costs to the successful respondents and non-parties, including the Estate, Susan Charendoff, Brian Cohen, and several corporate non-parties.

The decision addresses the principles of costs, including partial indemnification, encouraging settlement, discouraging inappropriate behavior, and ensuring justice, while considering the reasonableness and proportionality of the requested amounts.

The court held a voir dire to determine the testimonial capacity of the applicant, Barbara Cohen, who suffers from mild dementia.

The respondents argued she had capacity, while her counsel argued she lacked it.

Based on expert reports from two geriatric specialists (Dr. Joel Sadavoy and Dr. Richard Shulman) and the court's own questioning of Barbara, the court found that the applicant lacked the capacity to testify due to inconsistent memory, difficulty communicating complex ideas, and potential for increased anxiety under cross-examination.

The court ruled that her previous questioning transcripts would be filed instead of compelling her live testimony.

The applicant brought a motion for extensive financial disclosure from the respondents and non-parties in the context of a bifurcated trial.

Phase 1 of the trial was ordered to solely determine the validity of the marriage contracts.

The applicant argued the disclosure was necessary to assess the value of the estate for the fairness consideration under the Levan test and to respond to the defence of laches.

The court dismissed the motion, finding that the exact value of the estate was not necessary for Phase 1 and that ordering the disclosure would undermine the purpose of the bifurcation order.

In a family law proceeding, the parties disputed whether the applicant, who suffers from mild dementia and requires a litigation guardian, had the testimonial competence to testify at trial.

The court reviewed the conflicting expert evidence from geriatric specialists regarding her capacity to observe, recollect, and communicate.

Applying section 18(2) of the Ontario Evidence Act, the court determined it was necessary to conduct an in-person examination of the applicant to assess her testimonial capacity before ruling on the issue.

Following motions by both parties regarding refusals and questions taken under advisement during questioning, the Estate Trustee was largely successful.

Both parties sought costs of the motions.

The court determined the Estate Trustee's entitlement to costs as the successful party and fixed the quantum on a partial indemnity basis at $25,200, plus $500 for a prior appointment, payable by the applicant.

The respondent estate brought a motion on the first day of trial to amend its Answer to include the equitable defence of laches against the applicant's claim to set aside a marriage contract.

The applicant opposed the motion, arguing that laches is not a legally tenable defence to a statutory claim under section 56(4) of the Family Law Act and that the amendment would cause uncompensable prejudice.

The court granted the motion, finding that a claim for declaratory relief under section 56(4) is equitable in nature and can be defended by laches.

The court also found that any disadvantage to the applicant could be compensated by costs, an adjournment, or trial management.

The moving parties sought leave to appeal from the decisions of Corthorn J. and Shelston J. The Divisional Court dismissed the motion for leave to appeal in writing and awarded costs of $7,500 to the responding party.

In a bifurcated family law and estate proceeding, both the applicant and the respondent estate brought motions to compel answers to questions refused or taken under advisement during questioning.

The central issue for the first phase of the trial was the validity and enforceability of a 1986 marriage contract.

The court ordered the applicant to produce documents relating to her prior divorce and records from her physician and counsellor, finding them relevant to her understanding of domestic contracts.

The court dismissed the applicant's motion to compel the estate trustee to answer questions regarding the deceased's subsequent estate planning and relationships with lawyers, finding them irrelevant to the 1986 contract or overly broad.

The moving party sought an extension of time to file a motion for leave to appeal a costs order arising from a family law motion regarding school choice.

The court applied the Enbridge test and found that the moving party failed to demonstrate a bona fide intention to appeal within the prescribed time, did not adequately explain the delay, and that the proposed appeal lacked merit.

The court also noted significant prejudice to the responding party.

The motion for an extension of time was dismissed, and costs were awarded to the responding party.

The applicant and the respondent estate both brought motions under Rule 20(5) of the Family Law Rules to question a non-party lawyer who had advised the applicant on a marriage contract over 30 years ago.

The non-party opposed the questioning, suggesting written interrogatories instead.

The court found that the three-part test for questioning a non-party was met, as the lawyer's evidence was crucial to the validity of the marriage contract and could not be easily obtained by other methods.

Given the lawyer's advanced age and the importance of his evidence, the court also ordered that the questioning be recorded to preserve the evidence for trial, analogous to Rule 36 of the Rules of Civil Procedure.

The applicant father brought an urgent motion to modify a parenting agreement regarding supervised access to his three children, which the respondent mother had unilaterally restricted to virtual contact due to the COVID-19 pandemic.

The court found the matter urgent, emphasizing the need to uphold existing court orders and provide stability for children during uncertain times.

The court varied the access order, allowing for in-person supervised access at the paternal grandparents' home starting April 11, 2020, provided the father moved there and adhered to COVID-19 protocols.

Until then, access was to be virtual.

The applicant sought costs of $34,160 on a full recovery basis against a third-party witness who unsuccessfully opposed a motion to be questioned prior to trial.

The third party argued he was a non-party and sought his own costs.

The court found the third party was a party for the purposes of the motion under the Family Law Rules and that the applicant was the successful party.

Applying principles of proportionality and considering the respective offers to settle, the court awarded the applicant costs fixed at $10,000.

This endorsement sets out the procedural parameters for costs submissions following a previous ruling on a motion for the preservation of witness evidence.

The parties and a non-party witness had resolved the procedural issues regarding the recording of the witness's evidence, making a further court appearance unnecessary.

The court directed that written costs submissions, limited to four pages exclusive of a bill of costs, must comply with Rule 4 of the Rules of Civil Procedure, with specific deadlines for delivery by the parties and the witness.

This costs endorsement followed a motion to change a British Columbia final order concerning a pension waiver and spousal support, together with a disclosure motion and a cross-motion for temporary spousal support.

The successful responding party obtained costs after defeating both the disclosure opposition and the interim support request.

The court applied the Family Law Rules costs regime, including Rule 18(14), and held that unaccepted offers to settle triggered full recovery consequences on the relevant issues.

After reviewing the bill of costs, reducing certain claimed hours, and considering proportionality, complexity, and litigation conduct, the court fixed costs at $14,000 payable within 30 days.

Following a successful motion by the respondent Estate to bifurcate the trial regarding the validity of a marriage contract, the Estate and the co-respondent sought costs.

The Estate claimed over $74,000 in partial indemnity costs, which the applicant argued was disproportionate.

The court agreed that the Estate's costs were excessive and disproportionate for a one-day motion, despite the high stakes and complexity.

The court fixed the Estate's costs at $35,000 and the co-respondent's costs at $2,500.

The respondent Estate brought a motion to bifurcate the proceeding, seeking a first trial on the validity of a Marriage Contract, separate from other issues including the applicant's claim to set aside the contract, elect equalization, and seek dependant relief.

The applicant opposed, arguing duplication of evidence and prejudice.

The court granted the bifurcation, finding it would lead to a more just, expeditious, and less expensive determination by potentially narrowing issues and promoting settlement, aligning with the culture shift emphasized in Hyrniak v. Mauldin.

The applicant sought to vary a final order regarding spousal support and set aside a waiver of pension entitlement.

In the context of this motion to change, the respondent brought a motion for disclosure of the applicant's former counsel's file, and the applicant brought a cross-motion for temporary spousal support.

The court ordered the production of the file, finding an implied waiver of solicitor-client privilege due to the applicant putting her state of mind and knowledge regarding the original settlement at issue.

The court dismissed the cross-motion for temporary spousal support, emphasizing the high test for interim variation of a final order, which requires exceptional circumstances not demonstrated by the applicant.

The applicants, two women in a platonic relationship, sought to jointly adopt a Crown ward.

The Child, Youth and Family Services Act (and its predecessor, the Child and Family Services Act) restricted joint adoption applications to individuals who are "spouses of one another" defined as married or in a conjugal relationship.

The applicants challenged this restriction as discriminatory under section 15 of the Canadian Charter of Rights and Freedoms, arguing it violated their equality rights based on marital status.

The Attorney General of Ontario intervened and conceded constitutional invalidity.

The court found the legislation created a distinction based on marital status, an analogous ground, and perpetuated prejudice and stereotyping by excluding non-spousal couples from joint adoption without merit-based assessment.

The court further found the infringement was not justified under section 1 of the Charter, as it lacked rational connection and minimal impairment, and its deleterious effects outweighed any benefits.

The court declared the words "who are spouses of one another" in the relevant sections of both Acts to be of no force and effect for public adoptions.

Following a family law motion concerning amendments to pleadings, interim access, child support, section 7 expenses, and a request for a voice of the children report, both parties sought costs.

The court found that the applicant was the more successful party on the motion and cross‑motion, although not fully successful.

The respondent’s cross‑motion largely failed or was premature, while the applicant obtained partial relief on access and maintained the existing level of child support pending adjournment of other issues.

Considering the parties’ settlement offers and partial success, the court awarded the applicant partial indemnity costs.