Marta Siemiarczuk

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.

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 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 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.

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.

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.