Martha McCarthy

The Supreme Court of Canada considered whether to recognize a new tort of intimate partner violence in the context of family law proceedings.

The appellant wife had suffered a 16-year pattern of physical, psychological, and financial abuse by her husband.

The majority of the Court recognized the new tort of intimate partner violence, focusing on the harm of coercive control and the deprivation of autonomy, dignity, and equality.

The Court allowed the appeal in part, modifying the trial judge's damages award to fall entirely under general compensatory damages for the new tort.

The dissenting judges argued that existing torts were sufficient to compensate the wife and that recognizing a new tort was unnecessary and procedurally inappropriate in this case.

Following a trial where the applicant was awarded $3 million in lump-sum spousal support, the court determined the applicant's entitlement to prejudgment interest and costs.

The court awarded $129,698 in prejudgment interest, finding no reason to exercise its discretion to disallow it.

The court also awarded the applicant $670,000 in costs, noting she was entirely successful on the primary issue of spousal support and had made a qualifying offer to settle that entitled her to full recovery of costs from the date of the offer.

The applicant sought spousal support, unjust enrichment relief, and a mutual no-contact order arising from a disputed common-law relationship with an extremely wealthy respondent.

The court found the parties cohabited in a conjugal relationship from January 1, 2019 to August 23, 2023, applying the Molodowich factors holistically and relying heavily on contemporaneous records, caregiving evidence, and surreptitious recordings admitted for their high probative value.

The applicant failed to establish compensatory entitlement, but succeeded on a non-compensatory basis because of the enormous income disparity, her disability, and the steep post-separation drop from a highly luxurious standard of living.

The court imputed support income to the respondent using investible assets, fixed support at approximately $200,000 monthly for three years, and converted that award into a $3,000,000 lump sum.

The unjust enrichment claim and request for a restraining order were dismissed.

This is a costs decision following a successful appeal by the mother in a family law matter involving the Hague Convention and refugee status.

The mother's appeal overturned the application judge's decision to return the child to the country of origin after Canada granted the child refugee status.

The Court of Appeal awarded costs to the mother as the wholly successful party, fixing costs at $50,000 for the application and $30,000 for the appeal, totalling $80,000, while reversing the application judge's award of $75,000 to the father.

A wrongfully retained child was ordered returned to her country of origin after Canada granted her refugee status.

The Court of Appeal for Ontario allowed the appeal, finding that the application judge erred in failing to apply the rebuttable presumption against the return of a refugee child and in dismissing the child's objection to return.

The court held that when a child has been recognized as a Convention refugee by the Immigration and Refugee Board, a rebuttable presumption arises that there is a risk of persecution on return.

The application judge improperly questioned the refugee determination process and reweighed evidence without oral testimony or cross-examination.

Additionally, the child's clear and repeated objection to return, based on fear of violence by the father, was not given proper weight.

The matter was remitted to the Superior Court for determination of parenting and decision-making authority under section 23 of the Children's Law Reform Act.

This is a costs ruling following a complex fourteen-day combined family and civil trial.

The trial involved equalization payment disputes between spouses exceeding $10.5 million, unequal division claims, post-valuation date adjustments, fraud and oppression allegations, and a civil action for fraudulent conveyancing.

The husband was ordered to pay the wife an equalization payment of $1,054,267 and the wife was ordered to pay the husband $1,000,000 for oppression and punitive damages.

The court addressed costs claims from the wife and a third-party defendant, finding the civil action unnecessary and awarding limited costs to the wife for a specific pre-trial motion, while awarding substantial costs to the third-party defendant who successfully defended against fraud allegations.

The applicant husband sought to bifurcate family law proceedings, separating professional liability claims (breach of fiduciary duty and intentional infliction of mental distress arising from a prior psychotherapist-patient relationship) from matrimonial claims (divorce, support, and equalization).

The respondent wife opposed bifurcation, arguing the claims were inextricably linked as part of a continuous pattern of coercive control.

The court dismissed the motion, finding that hearing the matters together was more just, efficient, expeditious, and proportionate, particularly given the respondent's intention to testify about the entire relationship in the family law proceeding and the absence of any benefit from a stepwise approach.

The Court of Appeal for Ontario considered a motion for restrictions on access to the court file and decision in a Hague Convention child abduction appeal, where the child had been granted refugee status.

The appellant sought anonymization, a publication ban, and sealing of documents created under the Immigration and Refugee Protection Act.

The court reviewed the open court principle, the best interests of the child, and the test for discretionary limits on openness from Sherman Estate v. Donovan.

The court ordered anonymization, a publication ban, and sealing of IRPA documents, but declined to seal the entire file, balancing the child’s privacy and safety against the public interest in court openness.

Following a combined family and civil trial, the court determined equalization, trust, limitation, and oppression issues arising from a long marriage, disputed asset transfers, and the management of a closely held corporation that owned a farm property.

The court rejected large portions of the respondent's fraud-based narrative, found several earlier oppression and fraudulent conveyance allegations statute-barred, but held that the applicant's post-May 2022 conduct in arranging the sale of the farm to an aligned family member and stripping the corporation of value was oppressive under the OBCA.

The court also recognized a 50% trust interest in the Blue Mountain chalet in favour of the respondent, excluded the Taylor Mills property as gifted property, reassessed the respondent's marriage-date and valuation-date business interests, and rejected several claimed trust-related deductions and adjustments.

Equalization of net family property resulted in a payment owing to the applicant, while a separate post-equalization oppression and punitive award was made in favour of the respondent.

This costs decision follows a complex family law trial between Barbara Lang-Newlands and Ian Newlands.

The court reviews the parties’ conduct, settlement offers, and relative success on issues, ultimately awarding the applicant, Barbara, $2,800,000 in costs.

The decision details the application of the Family Law Rules regarding offers to settle, the reasonableness of the parties’ behaviour, and the principles guiding costs awards in family law litigation.

The court granted, in part, the applicant's motion for preservation and restraining orders over the respondent's assets in Ontario, a Mareva injunction over worldwide assets, and remedies for breach of court orders in a high-value family law dispute.

The respondent, who had moved millions of dollars out of Canada and failed to comply with multiple court orders, was precluded from further participation in the case, and a date for an uncontested trial was ordered.

The court declined to find contempt or impose a monetary penalty, but awarded full recovery costs to the applicant.

The parties separated after a 32-year marriage.

The applicant's father had established a highly successful business.

Before the marriage, the father settled a trust holding shares in the business for the applicant.

During the marriage, the applicant received the shares and later participated in an estate freeze, transferring the shares to a holding company in exchange for preferred shares, while a new trust (the NFT) acquired the common shares.

The applicant and her children were discretionary beneficiaries of the NFT.

The main issue was whether the applicant's interest in the NFT was property subject to equalization, and if so, whether it was excluded as a gift.

The court found the interest was property, but bound by the Court of Appeal's decision in Shinder v. Shinder, held it was an excluded gift.

The court also determined the valuation of various assets, dismissed the respondent's unjust enrichment claim to a cottage, and ordered the applicant to pay an equalization payment of $1.18M and needs-based spousal support of $25,649 per month.

The applicant wife brought an urgent ex parte motion seeking to continue a preservation order over the net proceeds of sale from a property owned by the respondent husband.

The husband sought to vary a prior consent order to release a portion of these funds to him.

The court continued the preservation order, finding the wife had a strong prima facie case for child support arrears and that there was a genuine risk of asset dissipation by the husband.

The husband failed to demonstrate a sufficient basis to vary the consent order, as the facts had not substantially changed and he did not meet the high onus required.

This endorsement addresses costs arising from a December 13, 2023 motion where the Applicant mother sought leave to file fresh evidence in an appeal of an arbitration award concerning children's schooling.

The mother was substantially successful on her motion, obtaining leave to file evidence from one therapist and an updated Voice of the Child report, while her request for evidence from a parenting coordinator was dismissed.

The Respondent father's cross-motion was dismissed.

The court found the mother entitled to costs, but not full recovery, due to issues with proportionality and the use of multiple counsel.

The father was ordered to pay $15,000.00 in costs to the mother.

This is a ruling on a motion to disqualify a witness, Gabrielle St. George, in ongoing matrimonial and civil litigation.

Vito Ierullo sought to call Ms. St. George, the estranged sister of Rae Marie Ierullo (referred to as Ms. Adragone), to provide evidence concerning a loan assignment, the transfer of a family home, and allegations of forgery and fraudulent documents.

Rae Marie Ierullo objected, arguing the proposed evidence was largely hearsay, lacked direct knowledge, and was motivated by ill-will.

The court found the evidence to be speculative, based on animus, and largely hearsay, concluding that its admission would unnecessarily expand the scope of the trial into collateral family and estate issues.

The motion to permit Ms. St. George to testify was dismissed.

This is an appeal of an arbitration award that changed the children's school from a private institution to a public one due to financial considerations.

The appellant mother alleged errors of law, fact, mixed fact and law, and procedural unfairness by the arbitrator, including failure to give due weight to the children's views, prioritizing finances over best interests, insufficient reasons, judicial notice errors, misapprehension of evidence, and procedural unfairness regarding financial disclosure.

The court dismissed the appeal, finding no palpable and overriding errors or errors of law, and upheld the arbitrator's decision, emphasizing deference to arbitral awards in family matters and the holistic consideration of the children's best interests within practical and financial constraints.

Following a family law trial with divided success on parenting and financial issues, both parties sought costs.

The applicant sought $250,000, while the respondent argued for no costs or $50,000 in the alternative.

The court reviewed the principles of costs in family law, including the impact of divided success, reasonable behaviour, and offers to settle.

Finding that neither party enjoyed a monopoly on success, neither beat their offers, and neither had a monopoly on reasonable conduct, the court ordered that no costs be payable by either party.

This endorsement addresses remaining issues from a trial, including parenting terms, equalization payment, prospective and retroactive section 7 expenses, life insurance to secure support, retroactive spousal support, and post-separation adjustments.

The court ordered a six-month review of parenting terms, set out specific prospective section 7 expenses and their payment ratio (Father 69.4%, Mother 30.6%), and clarified university expense coverage for the first degree.

Retroactive section 7 expenses were denied due to a lack of documentary proof.

The Father was ordered to maintain $2.1 million in life insurance, reducible biennially.

No adjustment was made to retroactive spousal support for 2021-2022, as interim payments were deemed fair, but the Father owes $30,000 for 2023 underpayments.

Claims by the Father for HELOC interest and matrimonial home carrying costs were denied due to lack of proof and prior agreement.

Costs were left for the parties to resolve.

The adult children of the parties brought a motion to be added as third parties to a long-standing family law application, asserting that their interests as discretionary beneficiaries in a family trust (Newlands Family Trust) could be prejudiced by decisions made at the upcoming trial.

The motion was filed on the eve of a six-week trial.

The court dismissed the motion, finding no compelling explanation for the significant delay in bringing the application, and noting the uncertainty regarding the children's standing and the prematurity of their purported cause of action, as discretionary beneficiaries do not possess a direct property interest in trust assets prior to appropriation.

The court emphasized that adding parties late in proceedings should be exercised sparingly and only when demonstrably necessary for the just determination of the litigation.

Costs were awarded against the moving parties.

This mid-trial ruling addresses the qualification of an expert witness, D.J. Myles Martin, proposed by the applicant (Rae Marie Ierullo) in a combined family and civil trial concerning business valuations.

The respondent (Vito Ierullo) challenged the expert's qualifications.

The court applied the Mohan and White Burgess tests for expert admissibility, considering factors such as formal education, professional qualifications, experience, and independence.

The court declined to qualify the expert, citing his lack of formal CBV accreditation, limited litigation support experience, and an undisclosed social relationship with the applicant, which raised concerns about his objectivity and non-partisanship.