Michael J. Ruhl

This costs endorsement addresses the allocation of costs following a family law appeal in which the appellant, Eleanor Dawn Hendriks, was substantially successful.

The Court of Appeal for Ontario awarded her costs for both the appeal and the underlying motion, reversing the motion judge’s previous order that required her to pay costs to the respondent.

The court found that the appellant was the more successful party and that the respondent did not meet the burden to show his settlement offers were more favourable.

The court also found that the appellant, as a self-represented litigant, was not unreasonable in her conduct.

This appeal concerned parental responsibility and decision-making for twin children, where one child was alienated from the mother and the other from the father.

The appellant mother sought to overturn a lower court order that maintained the de facto living arrangements (daughter with mother, son with father) and to reinstate previous shared parenting orders or gain sole parental responsibility for the son.

The Court of Appeal dismissed the appeal, affirming the motion judge's decision that the existing arrangements were in the children's best interests, given the history of failed therapeutic interventions and the lack of a concrete plan for reunification therapy.

The court also confirmed that a material change in circumstances was not required for the motion judge's order, as per a prior consent order.

The appellant sought to vary a 2015 consent order (Mossip Order) regarding child and spousal support after the respondent's income significantly increased post-separation.

The motion judge dismissed the variation request.

On appeal, the Court of Appeal found the motion judge misapprehended evidence regarding child support overpayments, leading to arrears.

The Court also found the motion judge erred in law by concluding spousal support entitlement was solely contractual and by failing to consider the appellant's material change in circumstances.

The appeal was allowed in part: child support arrears were fixed, and spousal support was varied and made time-limited, while the refusal to order ongoing Table amount child support for adult children was upheld.

The appellant, Paul Dowdall, appealed an order denying his motion to enforce minutes of settlement for child and spousal support.

The motion judge refused enforcement due to Mr. Dowdall's intentional and material non-disclosure of a significantly higher-paying job offer before accepting the respondent's settlement offer.

The Court of Appeal upheld the motion judge's discretionary decision, emphasizing the fundamental duty of full and honest financial disclosure in family law negotiations.

The court found that the non-disclosure deprived the respondent of the opportunity to make an informed decision and withdraw her offer, leading to an unfair result.

The appeal was dismissed.

The respondent husband moved to enforce a spousal support settlement agreement with the applicant wife.

The wife resisted, alleging the husband failed to disclose a new, significantly higher-paying job before accepting her offer.

The court found the husband's non-disclosure of his impending employment change and substantial income increase to be deliberate and material.

This informational asymmetry compromised the wife's ability to negotiate fairly, leading to an unfair agreement.

The court exercised its discretion to refuse to enforce the settlement, emphasizing the fundamental duty of full and honest financial disclosure in family law.

The husband's motion for judgment was dismissed, and the matter was directed to proceed to trial.

The respondent mother brought a motion to change seeking sole custody of one child, Frederick, and arrears of child support.

The applicant father sought sole custody of Frederick and that the mother have sole custody of the other child, Theresa.

The court dismissed the mother's claim for child support arrears, finding that interim arrears do not survive a final order unless expressly addressed.

Regarding custody, the court found evidence of parental alienation affecting both children.

Given the lack of a concrete plan for reunification therapy, the court maintained the status quo for residency, granting the father sole custody of Frederick and the mother sole custody of Theresa, with specific decision-making authority for each child and ordered sibling access.

Costs were awarded to the father.

The father brought a motion for a temporary order to return their child, Owen, to his habitual residence in Barrie, alleging the mother's unilateral move to Guelph constituted unlawful self-help.

The mother brought a cross-motion for a temporary order that Owen reside primarily with her in Guelph.

The court found the mother's self-help justified due to unique circumstances, including financial constraints and an untenable living situation with the father's parents.

Considering the child's best interests under the Children's Law Reform Act, the court favored the mother's parenting plan due to its sustainability and her primary caregiver role.

The father's motion was dismissed, and the mother's motion was granted, establishing primary residence in Guelph, a specific access schedule for the father, child support, and a referral to the Office of the Children's Lawyer.

Costs were not awarded, as the father's motion was deemed reasonable.

This costs endorsement followed the dismissal of Melissa Dawn Schuurman's motion for the release of garnished funds.

Jennifer Laura Schuurman, the successful party, sought costs of $6,043.81.

The court applied principles from the Family Law Rules, including the presumption of costs for the successful party, and considered factors such as the parties' conduct, offers to settle, and Melissa's limited ability to pay.

While Jennifer was successful, the court noted Melissa's position was not unreasonable despite being wrong in law.

Ultimately, the court fixed costs payable by Melissa to Jennifer at $5,000.00.

The moving party brought a motion to release garnished funds back to her for living expenses and to change custody of the children.

The responding party brought a cross-motion for directions and substituted service.

The court dismissed the request to return the garnished funds, noting that costs orders must be enforced and the funds should be released to the responding party.

The court also dismissed the request for a change of custody as premature.

The responding party's request for email service was granted on consent.

The father brought a motion seeking to enforce the terms of a temporary order regarding unsupervised access and to determine reasonable section 7 expenses for the child's special needs.

The mother opposed the transition to unsupervised access and sought confirmation of various extraordinary expenses including speech therapy, occupational therapy, tutoring, after-school care, and summer camps.

The court determined which expenses were reasonable and necessary in relation to the child's best interests and the parties' means, fixed a monthly contribution amount for section 7 expenses, and ordered the commencement of unsupervised access.

The parties, who were married for less than a year, disputed the ownership of a dog named Casper.

The responding party commenced an application for the return of the dog but subsequently removed the dog from the moving party's home without his consent.

The moving party brought a motion for the interim return of the dog.

The court condemned the responding party's use of 'self-help' while simultaneously seeking the court's assistance.

The court ordered the interim return of the dog to the moving party pending a final determination of ownership and directed the parties to schedule a settlement/trial management conference.