Michael Joseph Cupello

The applicant brought a motion seeking child support and spousal support, while the respondent brought a motion seeking access to one of the children.

The respondent stood in the place of a parent to the applicant’s older child but argued that support should not be payable because the child’s biological father had a support obligation and because their relationship had broken down.

The court applied s. 5 of the Child Support Guidelines and held that, given the limited evidence regarding the biological father’s enforceable support obligation, the step-parent respondent should pay full guideline child support on an interim basis.

The court also awarded nominal interim spousal support based on the respondent’s limited ability to pay and adjusted the access schedule to maximize the child’s contact with the respondent while accommodating his work schedule.

Decision on costs following motions by two defendants seeking leave to appeal an interlocutory order permitting the plaintiff to examine a key witness before trial under Rule 36.01(2) of the Rules of Civil Procedure.

The defendants sought over $28,000 in partial indemnity costs after obtaining leave to appeal, arguing the motion involved complex jurisdictional questions and issues of broader importance.

The plaintiff argued the claimed hours and duplication of work by multiple counsel were excessive and that success on the motion was partially divided.

Applying the discretionary framework under s. 131 of the Courts of Justice Act and Rule 57.01, the court held the claimed costs were excessive for a short motion and reduced the award significantly.

The court fixed costs of $3,000 to each of the two successful defendants payable by the plaintiff.

The applicant brought a motion seeking an extension of an ex parte restraining order against her spouse under family law proceedings.

The order had temporarily prevented the respondent from attending the matrimonial home.

The respondent opposed the extension and alleged the motion was intended to remove him from the home rather than address safety concerns.

The court found the alleged threats constituted verbal conflict within a volatile marital relationship but were unlikely to result in violence given the parties’ history and absence of prior violence.

The court concluded there was insufficient justification to continue the restraining order.

The plaintiff brought a motion under Rule 36 of the Rules of Civil Procedure seeking leave to examine a former defendant and corporate executive before trial.

The witness had relocated outside Canada and the plaintiff argued the examination was necessary to preserve potentially crucial evidence regarding the hiring of a defendant.

The defendants opposed the motion, arguing that witnesses should generally testify at trial, particularly before a jury, and that alternative mechanisms such as letters rogatory were available.

The court held that Rule 36 was designed for circumstances where a witness may be outside the jurisdiction and could possess important evidence.

Leave was granted to conduct a pre‑trial examination of the witness, with the examination to be videotaped and undertakings completed beforehand.

The applicant brought a motion for interim child and spousal support following separation.

The primary dispute concerned the income to be imputed to the respondent, who controlled a jointly owned Tim Horton's franchise.

The respondent argued income should be set at $120,000 based on a projected available cash analysis, while the applicant relied on the respondent’s sworn financial statement showing income of approximately $169,000.

The court found the projection unreliable due to unsupported assumptions and incomplete financial disclosure, including the absence of updated financial statements and corporate records.

Income of $169,000 was imputed to the respondent, resulting in guideline child support for three children and spousal support within the advisory range.

Application concerning entitlement to proceeds of a life insurance policy where the insured had first designated a sibling as revocable beneficiary and later designated a spouse and child in a will.

The will was subsequently revoked by operation of law upon the insured’s later marriage.

The court held that the beneficiary designation contained in the will constituted a “declaration” under the Insurance Act that revoked the earlier designation.

When the will was later revoked by marriage, the revocation did not revive the earlier beneficiary designation, leaving no valid beneficiary designation in effect.

Accordingly, the proceeds of the life insurance policy were payable to the estate.

On an interim motion in a family law proceeding, the respondent father sought permission to relocate with the parties’ two‑year‑old child from Thunder Bay to Dryden after obtaining employment as an occasional teacher.

The mother opposed the move and sought to maintain the existing shared care arrangement pending trial.

Applying the principles from Gordon v. Goertz and interim mobility jurisprudence, the court held that a temporary relocation requires a pressing reason and must be assessed in light of the child’s best interests.

Given the equal caregiving arrangement, the absence of a custody determination, conflicting affidavit evidence, and the likelihood of trial within six months, the court found the father failed to establish a pressing need for relocation.

The relocation request and related relief were dismissed and the status quo parenting arrangement was maintained pending trial.

The appellant father appealed a child protection disposition order granting Crown wardship with no access regarding two children.

He argued the trial judge erred in fact by ignoring evidence that parental substance abuse and domestic violence had ceased and erred in law by placing undue emphasis on continuity of care under s. 37(3)7 of the Child and Family Services Act while failing to properly balance other statutory factors, including cultural identity considerations for Indigenous children under s. 37(4).

The court held that no palpable and overriding factual error or legal error was demonstrated and that the trial judge had properly considered the relevant statutory factors.

The court found that the evidence regarding the harm of disrupting the long‑term foster placement supported the disposition.

The appeal was dismissed and no costs were awarded.

Following a family law trial concerning entitlement to spousal support between former cohabitants, the court determined the successful party's entitlement to costs.

The applicant had sought over $12,500 in costs based on legal fees exceeding $22,000, but achieved only partial success at trial, obtaining a lump-sum spousal support award of $6,000.

Applying rule 24 of the Family Law Rules and s. 131 of the Courts of Justice Act, the court considered the presumption that a successful party receives costs, the proportionality between costs and the relief obtained, and the parties’ conduct during litigation.

The court also held that costs could not be awarded for earlier procedural steps where no costs were ordered at the time.

In the circumstances, the court fixed a fair and reasonable costs award significantly lower than claimed.

The appellant appealed a motion judge's finding of a material change in circumstances regarding spousal support.

The Court of Appeal allowed the appeal, finding the motion judge erred.

The Court fixed the spousal support arrears at $6,000, payable in equal monthly instalments over six years, and awarded costs to the appellant.

Following the dismissal of the appellants' appeals, the parties made written submissions on costs.

The appellants argued for no costs due to the novelty and public interest of the issues, while the respondent sought substantial indemnity costs based on an offer to settle and the appellants' conduct.

The Court of Appeal rejected both positions, noting that Rule 49.10 does not apply to appeals.

The respondent was awarded partial indemnity costs fixed at $25,000 total for both proceedings.

The appellants, electors in a municipal election, sought to challenge a municipal councillor's election campaign finances.

They first applied for a compliance audit under the Municipal Elections Act, which the city council rejected.

The appellants then brought an application in the Superior Court, which was stayed on the basis that the Act constitutes a complete code of procedure.

One appellant subsequently swore a private information before a justice of the peace, who issued a summons.

The Superior Court quashed the summons.

The Court of Appeal dismissed the appeals, holding that the election campaign finance provisions of the Municipal Elections Act constitute a complete code of procedure that reserves the right to commence proceedings to the municipal council, precluding both a private application and a private information.

The appellants appealed the summary dismissal of their negligent misrepresentation claim against the respondent bank, and the partial judgment granted on the respondent's claim on a mortgage guarantee.

The Court of Appeal dismissed the misrepresentation appeal, finding no evidence that the bank falsely represented a third party's financial status or implied he would personally guarantee the loan.

On the guarantee claim, the Court held that the motion judge properly granted judgment but varied the order to grant the full amount of $869,091.18, while staying $246,000 of that judgment pending the determination of the appellants' counterclaim for an improvident sale.

The appellant mortgagee appealed the dismissal of its action against a guarantor on summary judgment.

The motions judge had found that the guarantor was discharged due to a change in the principal contract.

The Court of Appeal allowed the appeal, holding that the sale of shares of the principal debtor corporation to third parties did not vary the contract between the principal debtor and the mortgagee, nor did it breach the guarantee contract.

The appellant was granted summary judgment on the guarantee in the amount of $869,091.18.