Martha McCarthy

The applicant sought costs for several motions held earlier in the year.

The respondent failed to provide responding costs submissions.

The court found the applicant's behaviour on the motions reasonable, proportional, and primarily focused on the children's well-being, leading to successful orders.

Conversely, the respondent's behaviour was deemed unreasonable throughout and rose to the level of "bad faith," inflicting harm on the applicant and children by making them pawns in the litigation.

Applying the Courts of Justice Act and Family Law Rules, the court awarded the applicant costs on a full recovery basis due to the respondent's bad faith, totaling $69,419.86, and ordered the respondent to pay an additional $4,485.00 to an expert witness, Ms. Linda Popielarczyk.

This is a costs decision arising from a custody and access appeal concerning three children.

The father's appeal to the Court of Appeal was dismissed on all four grounds.

The court awarded the mother costs fixed at $25,000, representing 60-70% of her actual costs.

The decision addresses the presumption of costs in favour of successful parties in family law matters, the application of the Family Law Rules cost framework, and the impact of unreasonable conduct by both parties.

The court also addressed costs related to an unsuccessful appeal to the Divisional Court, declining to award costs for that stage due to the confusing nature of family law appeal routes in Ontario.

The appellant appealed a costs award of over $300,000 made by the motion judge in family law proceedings.

The motion judge had awarded costs to the respondent following a successful motion to strike the appellant's answer on the basis that a constitutional issue was not properly pleaded.

The Court of Appeal allowed the appeal on the merits, which provided the appellant with the opportunity to amend his answer.

The respondent remained entitled to costs of the original motion, but the costs award was reduced from over $300,000 to $200,000.

The court found that the motion judge erred in principle by adopting a "close to full recovery" approach, giving undue weight to settlement offers in circumstances where settlement was not practically possible, inappropriately increasing costs based on the appellant's ability to pay and the respondent's financial need, and failing to apply the proportionality principle required by the Family Law Rules.

The court addressed two motions.

The Respondent's "urgent" motion to vary a custody order and appoint counsel for the oldest son was dismissed due to non-compliance with Family Law Rules regarding notice, service, and the lack of actual urgency or exceptional circumstances.

The Applicant's Form 14B motion for leave to file an Amended Application was granted, as the Respondent had previously consented and no disadvantage was shown.

A second part of the Applicant's motion regarding children's items was deferred as largely moot.

Two members of the Haudenosaunee (Six Nations of the Grand River) brought a family law dispute regarding custody, child support, and spousal support.

The respondent raised a constitutional claim under s. 35 of the Constitution Act, 1982, asserting an Aboriginal right to have the dispute resolved through Haudenosaunee governance processes and laws rather than Ontario family law.

The motion judge struck the constitutional claim without leave to amend and dismissed it as lacking standing and justiciability.

The appellant appealed.

The Court of Appeal allowed the appeal in part, setting aside the dismissal of the constitutional claim and permitting the appellant to seek leave to amend his pleading.

The court held that while the constitutional claim faced serious obstacles, it was premature to dismiss it summarily at an early stage of proceedings.

The court also refused to stay the family law proceedings and permitted interim support orders to continue pending resolution of the constitutional claim.

The Applicant sought temporary sole custody and an order for the children's participation in the Family Bridges Program due to the Respondent father's ongoing disparagement of the Applicant and non-compliance with court orders, which was causing emotional harm to their three children.

The Respondent had previously failed to comply with support orders and parenting plan arrangements, leading to the temporary suspension of his access.

The court granted the Applicant temporary sole custody and ordered participation in the Family Bridges Program, with the Respondent to record phone calls and both parties to share upfront costs.

The court emphasized the children's best interests and the Respondent's continued disregard for court orders and the children's well-being.

The appellant father appealed a custody and access order from the Superior Court of Justice concerning his three sons.

The motions judge granted summary judgment in favour of the respondent mother, awarding her sole custody of two of the three children and ordering that the father's access and communication with the children be at the children's discretion.

The father challenged the appropriateness of summary judgment, the weight given to the custody assessment, the best interests analysis, and alleged Charter violations.

The Court of Appeal dismissed the appeal, finding no error in the motions judge's decision to proceed by summary judgment, his consideration of the evidence, his analysis of the children's best interests, and his costs award.

The respondent sought an order compelling the applicant to attend for cross-examination on her affidavit filed in support of a motion for advance funding of an appeal.

The applicant opposed the cross-examination.

The court dismissed the respondent's request, finding that the respondent was in breach of a disclosure order and that the court should not grant relief to a party not in compliance with court orders.

The court noted that the adequacy of the applicant's evidence and the evidentiary implications of her refusal to be cross-examined would be matters for the judge hearing the advance costs motion.

The applicant mother brought a motion for an order requiring the family to attend a reunification program to address the children's resistance to spending time with her.

The respondent father opposed the motion, arguing the program constituted 'treatment' requiring the children's consent under the Health Care Consent Act, and denying any alienation.

The court found the program did not constitute treatment and exercised its parens patriae jurisdiction to order attendance, finding the father had inappropriately involved the children in the litigation and that the program was in their best interests.

The applicant father brought an urgent motion for custody of a five-month-old infant child born to unmarried parents.

The respondent mother and maternal grandmother also brought competing custody applications.

The court consolidated the proceedings in Brampton, finding that the child was ordinarily resident there.

The court set aside prior without prejudice orders and established a temporary parenting plan providing the father with substantial access to the child, contingent upon the mother residing with the maternal grandmother and receiving treatment for mental health concerns.

The court emphasized the presumption favoring parental custody while recognizing the need for immediate protection of the child during the mother's mental health crisis.

The father sought costs against the child's privately retained counsel, Lorne Glass, following the dismissal of a child protection application brought by the 13-year-old applicant.

The father claimed that Mr. Glass acted improperly by bringing an abuse of process proceeding devoid of merit, wasting court time, and failing to seek proper court authorization for his representation of the child.

The court found that Mr. Glass's conduct caused costs to be incurred unnecessarily by commencing a collateral proceeding for an improper purpose—to stay the father's pending custody trial—rather than seeking appointment as counsel under the Family Law Rules.

Despite finding unnecessary costs were incurred, the court applied the "extreme caution" test and awarded only $5,000 in costs against counsel, recognizing the importance of protecting resolute advocacy in child protection matters.

Following a high-conflict custody trial where the respondent mother was found to have alienated the children, the applicant father sought costs of over $785,000.

The court awarded the applicant costs on a substantial indemnity basis for the main action and full recovery for specific motions, finding the respondent engaged in unreasonable and bad faith conduct.

The court also apportioned the costs of the section 30 assessment and reintegration therapy, ordering the respondent to pay the majority of these expenses due to her alienating behaviour.

Total costs of $625,337.40 were awarded to the applicant.

The applicant brought a motion seeking reimbursement for s. 7 expenses, further advances, and orders regarding a child's treatment and custody.

The respondent had a history of non-compliance with s. 7 expense orders, including failing to pay tuition, which caused a crisis for one child.

The court ordered the respondent to immediately reimburse the applicant for a specific university tuition payment.

The remaining s. 7 claims and the motions concerning the child's custody and treatment were adjourned, with the court noting the respondent's lack of collaboration and late disclosure as contributing factors to the ongoing issues and delays.

Directions for cost submissions were also provided, with the court highlighting the respondent's conduct.

The applicant, Tom, sought an order for the parties' 14-year-old child, Scarlet, to live with him in the United Kingdom and attend school there.

The respondent, Marie, opposed this motion and brought a cross-motion for interim child and spousal support, and s. 7 expenses.

The court dismissed Tom's motion, finding it was not in Scarlet's best interests to be uprooted from her established home and school in Toronto.

The court granted Marie's request for interim child and spousal support, and s. 7 expenses, based on the parties' 2016 incomes.

Marie was granted interim custody with final decision-making authority.

The respondent, Y, brought a motion to substitute her psychiatrist for the Family Bridges Aftercare worker, Ms. J. Vanbetlehem, alleging a conflict of interest due to Ms. Vanbetlehem's prior therapeutic services to the applicant, X. The court dismissed Y's motion, finding the issue was res judicata as Y knew or ought to have known about the alleged conflict before trial.

Furthermore, the court found no actual conflict of interest, as Ms. Vanbetlehem's services to X were not therapeutic but advisory, and the Family Bridges program is non-evaluative, with all professionals' goals aligned with the children's best interests.

Y was ordered to comply with the original order to participate in the Family Bridges Program.

This endorsement addresses the costs arising from a motion brought by the Applicant under sections 12 and 40 of the Family Law Act.

The court found that success on the underlying motion was divided, with the Applicant securing significant asset preservation orders while the Respondent successfully resisted broader relief.

The Respondent's prior unreasonable conduct justified the Applicant's motion, but both parties acted reasonably during the motion itself and in their settlement efforts.

Considering these factors, the court awarded the Applicant full disbursements and approximately 50% of her legal fees.

The applicants initiated a constitutional challenge to sections of the Children’s Law Reform Act and Vital Statistics Act concerning parental recognition for LGBTQ parents.

The respondent failed to file an Answer within the 30-day period and subsequently brought motions for an open-ended extension and directions.

The applicants brought a cross-motion.

The court dismissed all motions but, recognizing the complexity and importance of the constitutional issues, granted the respondent an extension to file an Answer and set a timetable for the litigation.

The respondent was sanctioned with $2,000 in costs for its unreasonable procedural conduct in delaying the filing of its motion for extension.

The applicant sought interim orders under sections 12 and 40 of the Family Law Act to restrain the respondent from dissipating assets, alleging depletion of capital that would impair her equalization and retroactive support claims.

The respondent opposed, arguing the applicant failed to meet the burden of proof and the relief sought was excessive.

The court found that while reckless depletion was not proven, there was a real risk the applicant would be unable to collect on a significant judgment due to the respondent's financial arrangements and delays.

The court granted a more tailored interim order, preserving specific assets, requiring the registration of a certificate of pending litigation against a cottage, and mandating a $4 million bond or letter of credit, while allowing the respondent to conduct ordinary course business with reporting requirements.

A 13-year-old child commenced a child welfare proceeding against her parents and the local children's aid society, seeking a finding that she and her siblings were in need of protection under the Child and Family Services Act.

The father moved to dismiss the application as an abuse of process and for failure to raise a genuine issue for trial.

The court found that the child had commenced the proceeding under the influence of her mother as a tactical measure to interfere with concurrent Superior Court custody proceedings.

The court dismissed the application, finding it was an abuse of process and raised no genuine issue for trial.

In a high-conflict family law trial, the applicant father sought sole custody of the parties' three children, alleging severe parental alienation by the respondent mother.

The court found overwhelming evidence that the mother had alienated the eldest child and that the younger children were at risk.

The court granted sole custody to the father and ordered the immediate implementation of a Phase II reunification program, which included a 90-day no-contact period between the children and the mother.

The father was also permitted to relocate with the children to Toronto.

Additionally, the court imputed an income of $40,000 to the mother for support purposes, ordered her to pay child support, ordered the father to pay spousal support, and resolved various net family property issues, including the valuation and treatment of a jointly leased cottage.