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 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.

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.

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.