Michael Cupello

The plaintiff brought a motion to strike the defendant's pleadings and for directions after the defendant failed to comply with a previous order to allow the recovery of personal property and pay costs.

The court issued detailed directions establishing a protocol for the plaintiff to retrieve its chattels, including the attendance of independent third parties.

The motion to strike was adjourned to allow the defendant to respond, with a warning that further non-compliance would be grounds to strike the pleadings.

The court heard three motions in related civil and family law actions to determine the distribution of $100,000 held by the Accountant of the Superior Court of Justice.

The funds were the remaining net sale proceeds of a property previously owned by the respondent.

The parties disputed the interpretation of the family law Minutes of Settlement regarding the calculation of the applicant's 50% share, specifically concerning add-backs for legal fees and whether the respondent could deduct his civil litigation legal fees.

The court found that only the legal fees attributable to the family law file should be added back and that the respondent was not entitled to deduct his civil litigation fees from the amount subject to division.

The plaintiffs were wholly successful on a motion requiring surplus sale proceeds from the defendant's property to be paid into court.

They sought costs of $20,000 payable from the funds in court, while the defendant argued for $3,000 to $6,000.

The court fixed costs at $12,500 inclusive of disbursements and HST, balancing the indemnity principle with access to justice.

The court declined to order the costs payable from the funds in court, as other parties might have claims against those funds.

The claimant law firm sought costs for two motions regarding the enforcement of Certificates of Proof of Claim for unpaid solicitor accounts.

The debtor opposed and sought costs, arguing he was entirely successful on one motion and partially successful on the other.

The court found that success was divided, as the debtor succeeded on one motion but failed in his request to have the accounts assessed, while the claimant was substantially successful on the second motion.

The court exercised its discretion under s. 131(1) of the Courts of Justice Act and ordered that neither party be awarded costs.

A law firm sought orders permitting enforcement of two Certificates of Proof of Claim obtained under the former Creditors’ Relief Act by issuing writs of seizure and sale against a former client for unpaid legal accounts arising from matrimonial litigation.

The debtor argued the certificates were invalid due to breaches of the Solicitors Act, including commencing recovery proceedings while accounts were under assessment and bringing a claim within one month of delivering a bill.

The court held that proceedings under the Creditors’ Relief Act constituted an “action” for the purposes of the Solicitors Act.

As a result, the first certificate was a nullity due to breach of s. 6(4), while the second certificate was partially unenforceable because part of the claim violated s. 2(1).

The sheriff was directed to enforce the second certificate only for the reduced amount calculated by the court.

Following settlement of a motion to change a prior child support order at the start of trial, the court determined the issue of costs.

The moving party sought full or partial indemnity costs, arguing the proceeding was necessary to obtain updated support based on the responding party’s income and to compel disclosure.

The responding party argued that the settlement largely reflected his offer and that no costs should be ordered.

The court held that the motion to change was necessary to secure proper support and disclosure, but excluded costs related to case and settlement conferences under the Family Law Rules.

The court awarded reduced costs to the moving party, enforceable as child support.

The mother brought a motion to extend the time to perfect her appeal from a crown wardship order.

The underlying issue on appeal was whether the trial judge erred in making the child a crown ward instead of approving a customary care agreement supported by the mother, the First Nation, and the children's aid society.

The Office of the Children's Lawyer opposed the extension.

The court applied the test for extending time to appeal, finding the mother had a firm intention to appeal, reasonably explained the delay due to health issues, and raised important issues regarding customary care agreements.

The motion was granted, allowing 90 days to perfect the appeal.

The applicant father sought unsupervised access to his five children and a reduction in child support arrears.

The respondent mother sought continued supervised access and payment of child support arrears.

The court found that due to a history of domestic violence and the children's reluctance to attend access visits, immediate unsupervised access was not in their best interests.

The court ordered continued supervised access with a transition plan involving individual and family counseling.

On the issue of child support, the court calculated arrears based on an interim order but reduced the outstanding amount by half to reflect the father's actual income, fixing the remaining arrears at $7,773.42.

The applicant father brought a motion seeking to change a prior order for supervised access to permit unsupervised access with the parties’ five children.

The supervised access order had been in place for over two years and arose in part from criminal charges and restrictions on contact with the mother.

The court noted the matter was scheduled for trial within two months and that significant factual disputes remained requiring full evidence.

Emphasizing the best interests of the children and the importance of stability pending trial, the court declined to alter the existing access arrangement.

The motion was dismissed and the parties were directed to proceed to trial.

The applicant and respondent separated after an eight-year marriage.

The court determined child and spousal support obligations.

The court imputed $90,000 of pre-tax corporate income to the applicant under section 18 of the Federal Child Support Guidelines, finding the corporation's retained earnings exceeded its legitimate business needs.

The court ordered the applicant to pay retroactive and ongoing child support based on a shared custody set-off, declining to reduce his obligation based on the respondent's new partner's income.

The court also awarded the respondent compensatory and non-compensatory spousal support of $2,250 per month for a duration of six years from the date of separation, plus retroactive support.

The parties proceeded to trial on the issues of child and spousal support following an eight-year cohabitation.

The applicant father is the sole shareholder of a successful engineering company, while the respondent mother is employed at a modest income and has re-partnered.

The court imputed $90,000 of the corporation's pre-tax income to the father under s. 18 of the Federal Child Support Guidelines, setting his income at $201,537.

Child support was determined based on a shared custody set-off, with a deduction for the biological father's actual support payments.

The mother was awarded compensatory and non-compensatory spousal support of $2,250 per month for a fixed duration of six years, with a retroactive award adjusted for notional tax consequences.