Mary Ellen Cull

The applicant wife and respondent husband separated in 2017 after a four-year marriage, leaving several financial issues to be resolved at trial.

The court determined that a purported mortgage and renovation loan from the husband's parents were actually gifts, meaning they could not be deducted from his net family property, resulting in an equalization payment of $326,211.50.

Additionally, the court imputed an annual income of $63,863 to the husband due to non-disclosure and creative accounting, ordering him to pay retroactive child support arrears of $27,198 and s. 7 expense arrears of $4,921.53.

The wife's claim for spousal support was dismissed.

The parties separated after a 14-year marriage with four children.

The applicant father sought child support deviation under shared custody and undue hardship provisions, as well as spousal support and equalization.

The court found the 40% shared custody threshold was only met for one child and rejected the undue hardship claim.

The court awarded the applicant spousal support of $875 per month for nine years on both compensatory and non-compensatory grounds, noting his contributions to the respondent's nursing career and his post-separation economic disadvantage.

Equalization values were also determined.

The appellant appealed an order appointing his mother and sister as guardians of property and personal care for his incapable sister.

The appellant argued the application judge made unreasonable findings of fact, unfairly disregarded his evidence, and failed to consider the incapable sister's best interests.

The Court of Appeal dismissed the appeal, finding that the application judge's findings were supported by the evidence, including the finding that the appellant's actions were financially motivated.

The application judge properly scrutinized the management plans and concluded it was in the incapable sister's best interests to remain with her mother.

Following a substantive decision under the Substitute Decisions Act, 1992 appointing family members as guardians of an incapable adult, the court determined costs arising from competing guardianship applications.

The successful parties sought elevated costs due to the applicant’s conduct in initiating and pursuing the litigation.

The court held that costs in SDA proceedings follow the general civil litigation principles under s.131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure.

Finding the applicant’s conduct precipitous, belligerent, and motivated by collateral dissatisfaction with estate arrangements rather than concern for the incapable person’s welfare, the court ordered costs on a substantial indemnity basis.

Fixed costs were awarded to the successful parties, payable by the unsuccessful applicant.

The applicant brother brought an application to be appointed as the sole guardian of property and personal care for his sister, who has significant cognitive and developmental limitations.

The respondent mother and sister brought a counter-application seeking joint guardianship.

The court found the sister incapable of managing property and personal care.

After reviewing the history of care and the conduct of the parties, the court dismissed the applicant's application and appointed the mother and sister as joint guardians, finding it was in the incapable person's best interests to remain in the care of her mother with a transition plan to her sister.

The applicant brother brought an application to be appointed the sole guardian of property and personal care for his developmentally disabled sister.

The respondent mother and sister brought a counter-application seeking joint guardianship.

The court found the sister incapable of managing property and personal care.

Applying the best interests test under the Substitute Decisions Act, the court dismissed the brother's application, finding he acted in bad faith and was motivated by financial interests.

The court appointed the mother and sister as joint guardians, noting the mother's lifelong devotion to the incapable person's care.

The court addressed whether an application should proceed where counsel for one respondent had only recently been retained after issuance of a Legal Aid certificate and other respondent counsel were also new to the file.

The court held that proceeding without allowing time for counsel to investigate and define the respondent's position would be unfair and would expose the matter to a likely appeal.

An adjournment was therefore granted and the matter was rescheduled.

The applicant sought costs in the amount of $10,000.00 in a family law proceeding concerning access to a child.

The matter began in July 2010 with the applicant seeking custody, child support, a restraining order, and no access for the respondent, who had a history of sexual offending against a different child.

Custody and child support were resolved by November 2010 and April 2011 respectively.

The access dispute continued through 2011-2013 with multiple court attendances awaiting risk assessments and proposed supervisors.

The matter was ultimately resolved on the basis of supervised access with a supervisor approved by the applicant.

The court found the applicant was moderately successful and entitled to costs on a partial indemnity basis, but discounted the award by 25% due to various factors including the respondent's modest income and the lack of complexity in the legal issues.

A child protection proceeding under Part III of the Child and Family Services Act involving two children who had been in the care of their paternal grandparents pursuant to a section 57.1 custody order.

The children were apprehended due to concerns about physical harm.

The paternal grandparents agreed they could no longer care for the children.

The biological parents each sought placement of the children with them, alternatively seeking access.

The court found the children were in need of protection and made a crown wardship order, granting access to the paternal grandparents but denying access to the biological parents.

The appellant appealed a decision awarding sole custody of a child to the respondent with generous access to the appellant.

The appellant argued that the reasons of the trial judge and the Superior Court appeal judge were purely conclusory and tautological.

The Court of Appeal dismissed the appeal, finding that the trial judge adequately assessed the parenting skills and plans of the parties, and correctly concluded that joint custody was not workable due to the parties' lack of cooperation.

The court also upheld the Superior Court judge's costs award.