Michael Rappaport

In a supplementary decision regarding costs of a Hague Convention application, the court clarified the timing for the payment of costs.

The mother argued that the costs should be payable at the end of the litigation to allow for a potential set-off.

The father argued that pursuant to the Rules of Civil Procedure, costs of an interlocutory order are payable within 30 days.

The court agreed with the father, finding that the Family Law Rules do not adequately cover the timing of interlocutory costs payments, and applied Rule 57.03(1) of the Rules of Civil Procedure.

The mother was ordered to pay the previously fixed costs of $13,267.84 within 30 days of the original costs decision, with interest.

The court determined the costs of a successful Hague Convention application brought by the father for the return of his child.

The father sought costs on a substantial indemnity basis, totaling $18,847.78.

The mother opposed, arguing the application was unnecessary and based on false pretenses.

The court affirmed its prior decision to award costs to the father, finding he was entirely successful and acted in good faith, while the mother acted unreasonably in failing to return the child and challenging the return order.

Considering factors under Rule 24 of the Family Law Rules, the court fixed the father's costs at $13,267.84.

The respondent father was largely successful on a motion to change to terminate child support for two adult daughters.

He sought costs of $9,628.79 on a full indemnity basis.

The applicant mother opposed, arguing the father's conduct was unreasonable and noting the financial impact on the remaining minor child.

The court applied Rule 24 of the Family Law Rules, found the father's conduct did not amount to bad faith, and awarded him costs of $8,608.04 inclusive of disbursements and HST.

The applicant mother unilaterally removed the children from the matrimonial home and took them to a shelter, alleging abuse.

The respondent father brought an urgent motion for interim parenting orders.

The court granted the father exclusive possession of the matrimonial home, ordered equal week-on/week-off parenting time, and appointed a psychologist to conduct an assessment under s. 30 of the Children's Law Reform Act, with the father paying initially.

The court also ordered interim child support of $1,000 per month from the father to the mother and struck inadmissible evidence from both parties' affidavits, including unsworn letters, hearsay summaries, and references to settlement discussions.

The respondent wife brought a motion for interim relief regarding the matrimonial home, seeking a vesting order, exclusive possession, or an order dispensing with the applicant husband's consent to refinance a line of credit secured against the home.

The court dismissed the requests for a vesting order and exclusive possession, finding them premature before an equalization order or determination of the separation date.

However, the court granted an order dispensing with the husband's consent to allow the wife to refinance the home up to $187,000 to reduce her monthly carrying costs.

The court also struck several paragraphs of the husband's factum for being inflammatory.

This costs endorsement followed a motion to change concerning child support and special expenses for the parties' adult daughter.

Mr. Tolstoy, the initial moving party, sought retroactive child support and Section 7 expenses.

Ms. Beach disputed the daughter's "child of the marriage" status and filed a cross-motion for retroactive child support from Mr. Tolstoy.

The court found the daughter remained a "child of the marriage" and ordered Ms. Beach to pay retroactive child support based on the Guidelines, including a severance cash-out.

Ms. Beach was more successful regarding the specific Section 7 expenses claimed by Mr. Tolstoy.

Mr. Tolstoy was successful in limiting his retroactive child support obligation to January 2008.

Overall, Mr. Tolstoy was deemed the more successful party.

Both parties were found to have behaved unreasonably by not serving updated offers to settle before the motion argument.

The court awarded Mr. Tolstoy partial indemnity costs of $15,000, inclusive of disbursements and HST, payable by Ms. Beach within 60 days.

The plaintiff, who alleged injuries from an OC Transpo bus accident, brought a motion seeking an order that the defendant City of Ottawa pay interim costs to fund the disbursements required for his documentary discovery, citing his impecuniosity.

The court applied the test from Okanagan Indian Band and found that while the plaintiff was impecunious and had a prima facie case, there were no special circumstances to justify an extraordinary award of interim costs in a routine personal injury action.

The motion for interim costs was dismissed, but the court set a timetable for the completion of documentary and oral discovery.

Following a family law motion concerning parenting arrangements and child support, the successful party sought full recovery of legal costs.

The court found that the moving party was mostly successful on the motion and that the resulting order closely reflected the moving party’s settlement proposal.

However, the court determined that the amount claimed in the bill of costs was excessive and included time outside the scope of the motion.

Taking into account the financial circumstances of the responding party and the reasonable time required to argue the motion, the court substantially reduced the requested amount and awarded partial indemnity costs.

On a motion to change a 2004 support order, the respondent mother argued that the parties’ adult child had unilaterally withdrawn from the parental relationship and was therefore no longer a "child of the marriage".

The court applied the jurisprudence governing adult children attending post‑secondary education and held that estrangement alone did not terminate entitlement to support, particularly where the child remained a full‑time university student.

The court ordered ongoing guideline child support from the mother and retroactive support dating back to 2010, and required proportional sharing of certain post‑secondary and related s. 7 expenses.

The court also addressed retroactive support owed by the father due to undisclosed income increases, applying the principles from D.B.S. v. S.R.G. and ordering limited retroactive adjustment.

Net set‑off resulted in a significant retroactive payment owing by the mother.

The defendants brought a motion for various relief, including amending their pleadings and removing a certificate of pending litigation, while the plaintiffs brought a cross-motion to strike the defence and counterclaim.

The plaintiffs were largely successful in opposing the defendants' motion.

The plaintiffs sought full indemnity costs of $11,534.35, while the defendants argued costs should be deferred to a future motion.

The court declined to defer costs, finding the defendants' motion largely unnecessary.

The court rejected the plaintiffs' request for substantial indemnity costs and fixed costs at $3,500 plus HST, payable by the defendants within 90 days.

The father brought a motion seeking appointment of the Office of the Children’s Lawyer, joint custody, and equal parenting time, or alternatively an interpretation of a separation agreement to increase his parenting time.

The court found that the agreement established a minimum amount of parenting time rather than a ceiling, meaning increased access could be considered without proof of a material change in circumstances.

However, due to ongoing parental conflict and uncertainty about the child’s wishes, the court declined to order equal parenting time on an interim basis.

Instead, the court quantified additional interim access for the father and set communication boundaries between the parents.

The court indicated that if equal parenting time continued to be pursued, the appointment of the Office of the Children’s Lawyer may be appropriate.

Following a motion and cross-motion concerning amendments to a statement of claim, the court determined costs.

The moving party sought substantial indemnity costs relying on a Rule 49 offer to settle and alleging improper litigation conduct by opposing counsel.

The court found the motion unnecessary and concluded that counsel for the responding party engaged in improper conduct, including impugning opposing counsel’s integrity and taking procedural steps that lengthened the proceedings.

Applying s. 131 of the Courts of Justice Act and Rules 57.01, 57.03, and 49 of the Rules of Civil Procedure, the court awarded substantial indemnity costs after the offer date.

Costs of $7,000 inclusive of disbursements and HST were ordered payable within 30 days.

The moving party sought leave to amend a statement of claim in a defamation action after documentary discovery revealed additional allegedly defamatory emails authored by the responding party.

The responding party opposed the amendment on the basis that the communications were unrelated, privileged, and statute-barred under the Limitations Act, 2002 and the Libel and Slander Act.

The court applied Rule 26.01 of the Rules of Civil Procedure, emphasizing the presumption in favour of permitting amendments absent non-compensable prejudice.

It found the amendments merely provided further particulars of an existing defamation claim rather than advancing a new cause of action, and that any prejudice could be addressed through procedural steps.

The motion to amend was granted and the responding party’s cross‑motion to compel answers to undertakings was dismissed.

Following a two-day trial concerning child support in a shared parenting arrangement, the respondent sought full recovery costs of over $32,000.

The trial result imputed modest additional income to the respondent and resulted in minimal net support adjustments.

The court found the respondent was the successful party and that the applicant had advanced serious allegations without supporting evidence and had engaged in litigation misconduct by strategically listing public officials as witnesses to pressure settlement.

However, the respondent had also failed to fully comply with disclosure obligations and attempted to tender previously undisclosed documents at trial.

Treating the parties’ litigation conduct as offsetting factors, the court awarded partial recovery costs to the successful party.

In a family law motion to change child support, the applicant sought leave on the eve of trial to amend pleadings, conduct questioning of the respondent before trial, and obtain additional disclosure.

The proceeding had already been set down for trial following a settlement conference.

Applying Rule 48.04 of the Rules of Civil Procedure, adopted through the Family Court Rules, the court held that motions or discovery after a matter is placed on the trial list require leave and will only be granted in exceptional circumstances.

The court found no substantial or unexpected change in circumstances justifying procedural discovery and concluded that the proposed amendment would significantly expand the issues and delay the trial.

Leave was refused and the motion dismissed.