Martha McCarthy

This endorsement addresses the issue of costs following the dismissal of the respondent mother's motion for independent legal representation for the children.

The applicant father, who successfully opposed the motion, sought costs on a substantial indemnity basis ($28,000).

The respondent mother proposed no costs or a significantly lower amount ($6,000).

The court applied established family law costs principles, affirming the presumption that a successful party is entitled to costs, and determined that partial indemnity was the appropriate scale.

The court ultimately awarded the father $15,000 in costs, finding his initial request too high and the mother's too low, aiming for a fair, just, reasonable, and proportionate result.

The applicant father brought an interim motion for partition and sale of the jointly owned matrimonial home.

The respondent mother opposed the motion, seeking to defer the issue to trial where she intends to request a time-limited order for exclusive possession.

The mother also asserted substantial claims for retroactive support and equalization payments, which could be satisfied by the father's interest in the home.

The court dismissed the father's motion, finding the immediate sale premature.

The decision emphasized the attenuated principles for interim partition and sale of a matrimonial home, requiring a holistic review that considers the best interests of the children and potential prejudice to the responding party's legitimate family law claims, such as exclusive possession or equalization.

The court noted the parties' prior promise to the children to allow them to remain in the home, the imminence of trial, and the lack of clear practical advantage to the father in an immediate sale, as proceeds would likely be held in trust.

The moving party, Lawrence Dale, sought an extension of time to appeal a vexatious litigant order issued by Diamond J. on July 5, 2019.

The Court of Appeal for Ontario dismissed the motion, finding that Dale failed to demonstrate a bona fide intention to appeal within the required period, provided an unreasonable explanation for the two-year delay, and that the proposed appeal lacked arguable merit.

The court also considered the significant prejudice to the responding party, Elise Teitler, and the children, noting Dale's non-compliance with existing support and parenting orders.

Consequently, the motion for a stay pending appeal was also dismissed.

The applicant mother brought a motion for interim child and spousal support and to determine the parenting schedule.

The parties agreed to a 2-2-3 shared parenting schedule and that the respondent father would employ a live-in nanny during his parenting time.

The court held that the respondent's parenting time would not be suspended if the nanny was occasionally unavailable, and that the nanny's cost was a section 7 expense to be shared proportionately.

For support purposes, the court imputed income to the respondent under section 19(1)(i) of the Child Support Guidelines based on capital distributions he received from a trust, grossing up those tax-free amounts.

The respondent was ordered to pay interim child and spousal support based on an imputed income of $327,000.

The husband moved to stay portions of a Superior Court order that declared the wife a 50% joint owner of the matrimonial home and directed its sale, pending a decision on his motion for leave to appeal to the Court of Appeal.

The court applied the three-part test for a stay: serious question, irreparable harm, and balance of convenience.

While the court found a serious question, the husband failed to establish irreparable harm, as any financial loss could be quantified, and the argument regarding children's disruption was not persuasive given their living situation.

The balance of convenience decisively favoured the wife, who needed access to the equity in the matrimonial home to secure stable housing for herself and the children.

Consequently, the motion to stay was dismissed.

The applicant mother brought a motion to stay or consolidate a civil action commenced by her father-in-law with her family law application.

The father-in-law had advanced $1 million for the purchase of the matrimonial home, which the mother claimed was a gift and the father-in-law claimed was a loan.

The father-in-law commenced a civil action for possession of the home, while the mother sought exclusive possession and equalization in the family proceeding.

The court found that the central issue of whether the advance was a gift or a loan was common to both proceedings and ordered that the civil action be heard together with the family application to avoid inconsistent findings and save time and expense.

Following an appeal of a family law arbitration award where success was divided, both parties sought costs of the appeal.

The applicant sought $70,000 and the respondent sought $111,734.71.

The court reviewed the principles of costs under the Family Law Rules, including the impact of offers to settle and divided success.

Finding that neither party was predominantly successful and neither acted unreasonably or in bad faith, the court ordered that each party bear their own costs of the appeal.

The court also reduced the costs of the arbitration payable by the applicant to the respondent from $75,000 to $49,150 to reflect the appellate outcome.

The applicant mother and respondent father both appealed an arbitration award concerning parenting and financial issues.

The mother appealed the arbitrator's decision requiring her to return with the children from Indiana to Ontario, arguing it failed to prioritize the children's best interests and the maximum contact principle.

The father appealed the arbitrator's decision granting the mother primary care and final decision-making authority upon their return to Ontario.

The Superior Court of Justice dismissed both appeals regarding the parenting issues, finding the arbitrator made no errors of law or palpable and overriding errors of mixed fact and law.

The court upheld the return to Ontario and the parenting arrangements, while reserving judgment on the financial issues.

The applicant father sought shared parenting time with two children (ages 9 and 7) and an order that the children continue attending their previous school.

The respondent mother opposed shared parenting and sought to restrict the father's bathing of the children.

The court found the mother's allegations of abuse and substance misuse lacked corroboration and were inconsistent with her willingness to allow unsupervised access.

The court applied the maximum contact principle and ordered a shared parenting schedule minimizing exchanges.

The court also ordered the children to attend their previous school for continuity and stability, rejecting the mother's speculation-based motion to prohibit bathing.

The respondent brought an urgent motion seeking custody of the parties' 14-year-old son and a comprehensive case review, alleging the applicant failed to follow COVID-19 guidelines and that a prior review was not held.

The respondent also made conspiracy allegations.

The applicant sought dismissal, highlighting the respondent's prior designation as a vexatious litigant and the denial of leave for a similar custody motion in April 2020.

The court denied leave to the respondent's motion and struck it under Family Law Rules 1(8) and 1(8.2), finding it to be an abuse of process.

The court noted the motion was almost identical to a previously denied one, new allegations were unsubstantiated, the respondent failed to meet conditions for parenting time resumption, and conspiracy theories had been previously rejected.

The applicant mother appealed an arbitration award concerning parenting and financial matters, specifically moving to stay the parenting provisions requiring the children's return to Ontario by May 31, 2020, and to admit fresh evidence.

The respondent father resisted the motion and sought to admit his own fresh evidence.

The court granted a stay of the parenting provisions until the completion of the appeal, finding a serious issue, irreparable harm to the children's best interests due to the COVID-19 pandemic's impact on specialized treatment and transition plans, and a balance of convenience favouring the stay.

The court also admitted relevant fresh evidence from both parties, adopting a flexible approach due to the children's best interests and risk of harm.

The applicant father brought a motion for a custody and access assessment under s. 30 of the Children's Law Reform Act, arguing that the parties' relationship was high conflict and the child was manifesting stress.

The respondent mother opposed the motion.

The court applied the Glick criteria and found that the evidence did not support the need for an assessment, as there was no clinical diagnosis, the child was thriving, and the conflict was typical of parenting disputes.

The motion was dismissed, and the parties were ordered to exchange parenting plans.

The parties engaged in a family arbitration that resulted in an award ordering the respondent to pay $450,000 in lump sum spousal support and $185,000 in costs.

The respondent appealed the award and brought a motion to stay its enforcement pending the appeal, while the applicant moved to dismiss or stay the appeal due to the respondent's failure to pay the award.

Applying the RJR MacDonald test, the court dismissed the motion for a stay, finding that the respondent failed to establish irreparable harm or that the balance of convenience favoured a stay, particularly given the arbitrator's findings of egregious financial non-disclosure by the respondent.

The court declined to dismiss the appeal as an abuse of process but ordered that the respondent must comply with the support order by a specified date, failing which the applicant could move to dismiss the appeal.

The father brought an application under the Hague Convention for the return of his two young children to Massachusetts, their habitual residence, after the mother wrongfully retained them in Ontario following a consented visit.

The court found that Massachusetts was the children's habitual residence, the father had custody rights which he was exercising, and the mother's retention was wrongful due to deceit.

The court dismissed the mother's defence of grave risk of harm, finding the alleged abuse insufficient to meet the high threshold.

The children were ordered to be returned to Massachusetts.

The applicant sought orders finding the respondent in contempt of eight separate court orders and declaring him a vexatious litigant under section 140 of the Courts of Justice Act.

The respondent requested an adjournment, which was denied, and then abruptly left the courtroom, failing to participate further.

The court found the respondent in contempt, noting his persistent and willful breaches of child support obligations, cost orders, involvement of children in litigation, and failure to comply with therapeutic mandates.

As a remedy for contempt, the respondent's pleadings were struck.

The court also declared the respondent a vexatious litigant due to his history of persistent, groundless proceedings, re-litigation of settled issues, and misuse of judicial resources, precluding him from instituting further proceedings without leave, with one specific exception for an existing civil case.

Two consolidated appeals arising from a family law proceeding between parents concerning custody and access to their child.

The respondent appealed an order dismissing a recusal application against a judge, and the appellant appealed an order denying leave to amend pleadings to seek custody.

The court found the case had become a procedural morass characterized by lack of good faith efforts to resolve issues.

Both appeals were dismissed.

The court emphasized that the appellant had pursued indirect procedural tactics rather than direct routes of review, and that the custody issue had been finally determined by a subsequent order that was not appealed.

The applicant sought interim child support for an adult child (S.H., age 24) with mental and physical health issues, ongoing university costs, counselling costs, and interim disbursements for legal and expert fees.

The respondent brought a cross-motion seeking a psychological assessment of S.H., disclosure, and an order to file cryptocurrency investment documents under seal or partially redacted due to security risks.

The court found S.H. was entitled to interim child support and some post-secondary education expenses.

It granted reduced interim disbursements to the applicant for legal and expert fees, to be treated as a loan.

The respondent's request for a psychological assessment of S.H. was adjourned to allow S.H. to obtain independent legal advice, and the request for cryptocurrency redaction was granted due to security concerns.

This is a costs decision on appeal from a family law matter.

The appellant (father) sought to stay family law claims pending resolution of a constitutional challenge under s. 35 of the Constitution Act, 1982.

The motion judge struck the amended answer as lacking proper pleading of the constitutional claim.

On appeal, the Court of Appeal allowed the appeal in part, granting leave to amend the answer but refusing to stay the interim support order or the family law claims.

The respondent (mother) was found to be more successful on the appeal.

The court awarded costs to the respondent in the amount of $20,000, inclusive of the costs of a stay motion and all disbursements and HST.

The case management judge issued a procedural endorsement following a case conference that the respondent father failed to attend.

The endorsement details a long history of high-conflict family litigation, marked by the father's repeated breaches of court orders, failure to pay support, and alienation of the children from the applicant mother.

The judge noted the father's misuse of judicial resources through numerous urgent and meritless motions.

To control the court's process and protect the children, the judge ordered that neither party may bring further motions without prior leave obtained at a case conference.

The judge also ordered the father to arrange for after-care therapy and warned of severe sanctions, including contempt or striking of pleadings, if he continued to flout court orders.

Lawrence Mark Dale sought leave to extend the time for appealing three interlocutory orders made by Faieta J., along with a stay of those orders, directions for the case, and an order appointing a lawyer for his children.

The court dismissed the motion, finding that Dale failed to satisfy the test for granting an extension of time to appeal, particularly regarding the merits of the proposed appeals and his explanations for delay.

The court also noted Dale's wilful breaches of previous court orders.