Maxine M. Kerr

This endorsement addresses cross-motions for undertakings and refusals in a family law proceeding.

The court noted significant non-compliance by both parties with procedural rules, including deficiencies in undertakings charts, improper CaseLines uploads, and failure to provide draft orders.

The respondent also attempted to file a late affidavit, which was refused.

The court ordered the respondent to produce specific documents and information within strict deadlines, including income and employment details, and warned that failure to comply would preclude reliance on such documentation at trial.

The applicant's motion was largely successful, and their draft order was to issue, with costs to be determined.

This ruling addresses two motions brought by the applicant in a family law proceeding, which is intertwined with an ongoing construction lien action.

The applicant sought disclosure from the respondent, production of his former lawyer's file in the lien action, and an order to question non-parties.

The core dispute revolves around a settlement reached during a family law trial, which the applicant seeks to set aside, alleging misrepresentation by the respondent regarding his financial affairs and position in the lien action.

The court found that the respondent had waived solicitor-client privilege and ordered significant disclosure from him, including his former lawyer's file and communications with the non-parties.

However, the request to question the non-parties was denied as premature, pending the completion of the ordered disclosure.

The parties attended a family law case conference.

The respondent husband revealed for the first time at the conference that he and his partners had sold their business the previous day, despite having negotiated the sale for five months.

The applicant wife sought leave to retain her own Chartered Business Valuator to prepare a comprehensive valuation of the respondent's business interest, which the respondent opposed on the basis that they had previously jointly retained a valuator who provided a calculation valuation.

The court granted the applicant leave to retain her own expert, finding that the respondent failed to comply with his financial disclosure obligations and that the previous calculation valuation provided little assurance of accuracy.

The court also ordered the respondent to pay the costs of the conference due to his late disclosure, with the amount to be determined.

This decision provides supplementary reasons for calculating child and spousal support arrears following a 2002 consent order.

The court addressed the imputation of income, the methodology for calculating spousal support after children ceased to be "children of the marriage" and the tax treatment of lump sum spousal support arrears.

It was held that the applicant was not entitled to 60% of the family's net disposable income after child support obligations ended, and that a lump sum award of arrears of spousal support, representing amounts due under an existing order, was not required to be "netted down" for income tax deduction purposes as the Canada Revenue Agency permits such non-retroactive lump sum payments to be deducted by the payor.

This is a costs ruling following motions where the respondent's motion to change an order was unsuccessful, and the applicant's motion to impute income and change child and spousal support was successful.

The City of Toronto also participated due to an assignment of arrears.

The court awarded the City of Toronto $5,000 in costs and the applicant $20,000 plus HST and disbursements for her solicitor's fees, and $2,000 plus HST and disbursements for her self-represented preparation time, finding the respondent's conduct unreasonable, particularly regarding financial disclosure and disregard for court orders.

The applicant sought summary judgment to dismiss the respondent's claim for a $20,341.98 credit against support payments, which the respondent asserted was due from a prior costs order.

The court found that the costs order was conditional on an equalization payment that was never made due to the respondent's bankruptcy.

Furthermore, any such debt would have vested in the bankruptcy trustee.

The applicant's motion for summary judgment was granted, dismissing the respondent's claim for the credit.

In this family law costs decision, a corporate respondent sought costs after obtaining dismissal of the application against it on a motion akin to summary judgment.

The court held that the applicant's pleadings disclosed no cause of action against the corporation and that its continued joinder and compelled participation were unreasonable, but also found the corporate respondent overreached by seeking a dismissal that would effectively bar future properly pleaded claims.

Applying the Family Law Rules costs framework, the court treated success on the motions as divided and rejected full recovery.

Partial recovery costs of $9,850 plus HST were awarded, payable within 90 days.

The appellant mother appealed an order reducing her spousal support from $2,200 to $1,150 per month.

The motion judge had imputed income to the appellant after finding she unreasonably failed to complete her nursing program, rejecting her evidence that childcare responsibilities prevented her completion.

The Court of Appeal allowed the appeal, holding that the competing affidavits raised significant credibility issues that could not be resolved without a trial.

The court directed a trial on the issue of spousal support and reinstated the original support amount in the interim.

The appellant appealed an order of the Superior Court of Justice.

On consent, the Court of Appeal dismissed the appeal in accordance with the terms of a filed draft order.