Michael Rappaport

In a family law proceeding arising from the breakdown of a 13-year common law relationship, the court addressed competing motions concerning property rights, child support, and protective orders.

The applicant sought a Certificate of Pending Litigation against the matrimonial home, a non-dissipation order, child support, and disclosure of insurance information.

The respondent sought dismissal of the Certificate application and the exclusive possession order, and opposed child support.

The court granted the Certificate of Pending Litigation based on a reasonable claim to an interest in the property grounded in unjust enrichment principles, terminated the exclusive possession order by consent, declined to grant a non-dissipation order, deferred child support pending the respondent's return to employment, and ordered disclosure of insurance details and financial statements.

This is a costs endorsement following the dismissal of an application challenging the validity of a will.

The applicant sought to set aside the deceased's 2016 will on grounds of lack of testamentary capacity, undue influence, and improper execution.

The court dismissed the application, finding the will was duly executed and that the applicant's allegations were unsupported.

The respondent sought substantial indemnity costs, which were awarded on the basis of the respondent's settlement offers and the applicant's reprehensible litigation conduct in making unfounded allegations of fraud and undue influence.

This costs decision follows a three-day trial in which Laurie Ann Huggins was almost entirely successful against Thomas Edward Hayhurst and Anne-Marie Carswell.

The court found that the Respondents acted in bad faith throughout the proceedings, including disobeying court orders, fraudulent conveyance of property, and intimidation.

The court reduced the Applicant’s Bill of Costs to $89,651.81, finding this amount reasonable and proportionate given the Respondents’ conduct and the complexity added to the litigation.

The Respondents were ordered to pay this amount immediately.

This costs endorsement addresses the entitlement and quantum of costs following a motion regarding the choice of school for the parties’ teenage children.

The respondent father, having succeeded on the motion, sought full recovery costs.

The court found the applicant mother’s conduct unreasonable but not in bad faith, and awarded the father elevated but not full recovery costs, fixing the amount at $4,000 inclusive of HST.

The respondent father brought an urgent motion seeking an order that the parties' two children attend their choice of schools in Ottawa, within the catchment area of the matrimonial home.

The applicant mother opposed, requesting the children attend school in Gatineau, Quebec, where she had relocated, citing financial strain and travel costs.

Applying the best interests of the child framework, the court found that history of care, stability, and the children's expressed preferences strongly favoured remaining in their current Ottawa school catchment area.

The father's motion was granted.

The applicant father sought the return of the parties' four-year-old child to the United Kingdom under the Hague Convention on the Civil Aspects of International Child Abduction, alleging wrongful retention by the respondent mother in Canada.

The court applied the hybrid approach to determine habitual residence, finding it to be the UK.

However, the court found that the father, through his actions, had consented and acquiesced to the child's retention in Canada, thereby triggering an exception under Article 13(a) of the Convention.

Consequently, the application for the child's return was dismissed, and the court assumed jurisdiction over the matter.

The mother (Respondent) brought a motion for disbursement of proceeds from the sale of the matrimonial home (Hanlon property), seeking to apply them to various debts, including a second mortgage on her current residence.

The father (Applicant) brought a cross-motion seeking distribution of the Hanlon proceeds according to a marriage contract, distribution of proceeds from another jointly owned property (Tremblant), and an adjustment to child support.

The court upheld the validity of the marriage contract, found the father had frustrated the sale of the Hanlon property, and largely granted the mother's requests for immediate disbursement of the Hanlon proceeds, including payment of outstanding child support and section 7 expenses from the father's share.

The father's child support claim was dismissed due to insufficient disclosure, and his request for distribution of the Tremblant property proceeds was dismissed without prejudice to be argued at trial.

The respondent mother brought a contempt motion against the applicant father for breaching various court orders and domestic contracts related to children's psychological services, dietary restrictions, non-disclosure, civil conduct, child support, and Section 7 expenses.

The applicant father brought a cross-motion to stay and vary child support.

The court found the father in contempt of one count (refusing to follow physician referrals) and in non-compliance of seven other counts.

Several other allegations were dismissed.

The father's cross-motion to vary child support was dismissed due to insufficient financial disclosure and non-compliance.

The court issued specific orders for both parties to ensure compliance with parenting, support, and disclosure obligations.

This is a costs endorsement following a judgment in favour of the plaintiff.

The plaintiff sought costs on a partial indemnity basis up to trial preparation and substantial indemnity for trial preparation and trial.

The defendants argued for a cap on costs, asserting the Small Claims Court Act should apply due to the damages awarded being below the Small Claims Court limit.

The court found that the action, brought under simplified procedure in the Superior Court, was not subject to the Small Claims Court Act's cost cap.

The court awarded substantial indemnity costs for trial preparation and trial, and partial indemnity for earlier proceedings, due to the defendants' reprehensible conduct, including deliberate departure from approved building plans, failure to comply with interim court orders, and improper conduct during trial.

The total costs awarded to the plaintiff were $110,000.

The plaintiff sued his neighbours for nuisance and the tort in Rylands v. Fletcher due to water and debris migration from their property onto his.

The defendants had built their property in deliberate disregard of city-approved plans, leading to improper roof slope, downpipe placement, grading, and retaining wall construction.

The court found the defendants liable for nuisance, awarding the plaintiff compensatory damages for property repairs and general damages for loss of enjoyment.

A mandatory injunction was issued requiring the defendants to undertake specific remedial construction to abate the nuisance.

Punitive damages were denied as disproportionate given the injunctive relief.

The plaintiff brought an action for nuisance and property damage under the simplified procedure (Rule 76), seeking mandatory and injunctive relief.

At the outset of the trial, the defendants argued that the action was improperly commenced under Rule 76 because it sought injunctive relief, and asked the court to strike those claims.

The court rejected the defendants' argument, holding that Rule 76 does not preclude claims for injunctive or mandatory relief provided the action otherwise complies with the rule.

The court affirmed its equitable jurisdiction to grant such relief in simplified procedure actions and noted the defendants suffered no prejudice.

The applicant mother brought a motion to dismiss the respondent father's Motion to Change, which disputed paternity and child support obligations.

The respondent had a history of non-compliance with multiple court orders for financial disclosure and failed to advance his motion.

The court applied a three-pronged test for striking pleadings, finding that the respondent's wilful and egregious non-compliance, including failure to provide tax returns and pay cost orders, justified dismissing his Motion to Change.

The court determined that no other remedies would suffice given the exceptional circumstances.

The applicant brought a motion to strike the respondent's Answer and Claim due to persistent non-compliance with multiple court orders regarding financial disclosure, child support payments, and supervised access arrangements.

The court reviewed the respondent's history of non-compliance, including delays in providing financial statements, tax returns, business records, and medical reports, as well as arrears in child support and unpaid costs awards.

While acknowledging the respondent's significant delays, the court ultimately dismissed the motion to strike, deeming it an exceptional remedy.

Instead, the court granted alternative relief under Rule 1(8) of the Family Law Rules, imposing specific deadlines for outstanding disclosure, precluding the respondent from filing further evidence on certain items, and restricting his ability to seek further court orders until compliance.

The court emphasized the children's best interests in allowing the matter to proceed to trial.

The Estate of Jackie Cray brought a motion to dismiss an application by Sofie Vaux-Lacelle, who sought a declaration that she was the deceased's common-law spouse for OMERS pension survivor benefits.

The Estate argued that the internal OMERS Dispute Resolution Process was a more suitable forum.

The court dismissed the motion, finding that while the OMERS process was a valid avenue, the Superior Court application was also appropriate given the factual complexity, credibility issues, significant value of the benefit, and greater flexibility for settlement and witness accommodation in court proceedings.

The court determined costs following a motion and cross-motion where the applicant's claim for exclusive possession and the respondent's claim for the sale of the home were both dismissed.

The applicant was the more successful party on parenting issues.

The respondent sought costs and a fine against the applicant, alleging bad faith and unreasonableness, including attaching an offer to settle to her affidavit.

The court dismissed the respondent's claims, finding no bad faith and declining to impose a fine for a counsel misstep.

The court awarded the applicant costs of $3,050, reflecting her success on the parenting issues while offsetting the dismissed property motions.

The applicant brought an urgent motion for exclusive possession of a jointly owned home and primary parenting of two children.

The parties were unmarried spouses.

The respondent brought a cross-motion for the immediate sale of the home and shared parenting.

The court dismissed the claim for exclusive possession, finding no statutory or inherent jurisdiction to oust an unmarried joint owner.

The court also dismissed the cross-motion for sale, finding that a forced sale would cause hardship to the children amounting to oppression.

The court granted primary residential care to the applicant with specified parenting time for the respondent.

The mother brought a motion seeking a finding of contempt and a $5,000 fine against the father, a six-week summer access period, sharing of travel costs as Section 7 expenses, and punitive costs.

The court dismissed the contempt and perjury claims, finding no breach of the prior order.

The court maintained the previously ordered four-week summer access schedule and ordered each party to bear their own transportation costs for the child's travel between Ontario and Nova Scotia.

The parties were ordered on consent to exchange their Office of the Children's Lawyer intake forms.

The appellant, convicted of offences under the Bankruptcy and Insolvency Act, applied to adduce fresh evidence on his summary conviction appeal.

The proposed evidence included various documents and correspondence related to his bankruptcy proceedings.

The court applied the Palmer test and dismissed the application, finding that the proposed evidence either did not meet the criteria for admission, was not fresh, or raised new Charter issues that should have been litigated at trial.

The respondent grandmother brought a motion to strike the applicant step-grandfather's application for contact with their grandson.

The respondent argued the issue was res judicata due to a prior child protection order granting her custody.

The court dismissed the motion to strike, finding the applicant was not a party to the child protection proceeding and the Children's Law Reform Act explicitly allows for contact applications following such orders.

The court ordered the biological parents to be added as respondents but declined to order the applicant to pay child support.

The applicant mother brought a motion to determine whether the Ontario Superior Court of Justice had jurisdiction over custody and access of the parties' child, who had been living in India with his paternal grandparents since 2018.

The court found that because the parties were pursuing a divorce and both resided in Ontario, the Divorce Act superseded the Children's Law Reform Act, granting the court jurisdiction.

Alternatively, the court found that under the CLRA, the child's last habitual residence was with his parents in Ontario, also giving the court jurisdiction.