Michael N. Varpio

The applicant father and respondent mother brought competing motions regarding the mother's request to relocate their child to Sudbury.

The mother had moved to Sudbury for better economic opportunities and to live with her new partner.

The court considered the father's history of a severe drinking and driving incident, which raised concerns about his sobriety and the child's safety in his care.

Finding no such risks with the mother's plan, the court granted interim custody to the mother and permitted the child's relocation to Sudbury, with access to the father.

No costs were awarded as the court questioned the urgency of the mother's initial move.

The applicant spouse brought a motion for interim spousal support following the breakdown of a long marriage.

The respondent opposed the motion, arguing both lack of entitlement and inability to pay due to debt and a consumer proposal under the Bankruptcy and Insolvency Act.

The court held that the length of the relationship and the parties’ significantly disparate incomes established a prima facie entitlement to interim support on a non‑compensatory basis.

Using the Spousal Support Advisory Guidelines and the respondent’s pre‑separation income, the court determined the appropriate interim quantum while noting inconsistencies in the respondent’s evidence about debt obligations and discretionary spending.

On a motion for temporary parenting arrangements and child support following separation, the parties agreed to share custody but disputed the access schedule and support obligations.

The moving party sought primary residence for the young children with structured access to the responding party.

The court considered allegations of alcohol misuse, aggressive communications, and instability raised in affidavit evidence.

Concluding that a 50/50 parenting schedule would not presently serve the children’s best interests, the court ordered temporary primary residence with the moving party and a defined access schedule for the responding party, together with guideline child support.

In a family law dispute concerning spousal support and equalization, the responding party filed affidavit materials referencing settlement negotiations, offers to settle, case conference briefs, and solicitor-client communications.

The moving party sought an order striking those portions of the record on the basis of settlement privilege, solicitor-client privilege, and the confidentiality provisions of the Family Law Rules.

The court reviewed the governing common law principles protecting settlement communications and the statutory confidentiality regime under Rules 17 and 18.

It held that settlement discussions, offers to settle, conference brief materials, and solicitor-client communications are presumptively privileged and cannot be included in the court record absent exceptional circumstances.

Most of the impugned passages and exhibits were therefore struck from the record.

This was a family law costs ruling following motions concerning overnight parenting time, a s. 30 assessment, and assistance from the Office of the Children’s Lawyer.

The court held that the father was largely successful and was presumptively entitled to costs under Rule 24 of the Family Law Rules, but declined to award substantial indemnity costs solely because he had bettered an all-or-nothing offer to settle.

The court found the mother had unreasonably persisted in resisting overnight access despite professional consensus, while also recognizing her limited partial success on the OCL issue.

After reducing the amount claimed as excessive, the court fixed costs in the father's favour at $11,000 all inclusive, payable within 60 days.

The parties separated in 2013 and have two children.

The mother sought an order for a section 30 assessment under the Children's Law Reform Act to evaluate the father's parenting abilities, citing concerns about his mental health and alleged drug use, and opposed his request for overnight access.

The father opposed the assessment and sought increased, overnight access on a step-up basis.

The court dismissed the mother's request for a section 30 assessment, finding it prohibitively expensive and unnecessary given the existing professional evidence from the Children's Aid Society and the father's treating psychiatrist, both of whom indicated no safety concerns.

The court requested the involvement of the Office of the Children's Lawyer and granted the father interim overnight access, finding it to be in the children's best interests.

The father brought a motion to reduce his child support obligations after quitting his $60,000 per year maintenance job in Ottawa and relocating to Sault Ste.

Marie to pursue a new relationship.

He sought to have support based on a reduced income of $30,000, citing medical reasons for leaving his previous employment.

The mother opposed the motion and sought to impute his previous income.

The court found insufficient evidence to determine the reasonableness of the father's resignation and converted the motion to a trial.

In the interim, the court imputed the father's previous income of $60,689, ordering him to pay $902 per month in child support, plus costs.

Following a prior finding of civil contempt for commencing foreign litigation contrary to a final order, the court addressed the outstanding sentencing issues of costs, fine, and payment mechanics.

Applying civil contempt sentencing principles and the presumptive substantial indemnity approach to contempt costs, the court held that the contemnor's second act of contempt, the delays caused, and the seriousness of undermining court orders justified substantial indemnity costs, subject to a reduction for duplication of effort.

The court also imposed a fine to reflect specific and general deterrence, emphasizing the need to protect the authority of court orders.

Directions were given for release of trust funds and payment of statutory interest.

In a family support motion brought pending an appeal from an adjournment order, the moving party sought suspension of support payments or payment into a holding account until the validity of a separation agreement could be determined.

The court held that Rule 38(25) of the Family Law Rules is procedural only and does not confer substantive authority to grant that relief.

The court further held that the requested remedy exceeded what could properly follow even if the appeal from the adjournment were successful.

The motion was dismissed, with brief written costs submissions invited.

Following a short marriage with no children, the court determined property equalization and a spousal support claim arising from a matrimonial home that had been sold under power of sale with a substantial mortgage shortfall.

Applying the Family Law Act net family property regime, the court found the ordinary equalization calculation would require a payment of $22,500, but held that result would be unconscionable given the short marriage, unvalued assets, the parties' shared treatment of the home as a joint venture, and the debt circumstances.

The equalization payment was reduced to $7,500 and made payable over 36 months.

The spousal support claim was dismissed because the marriage was brief, no compensable economic disadvantage arising from the marriage was shown, and the claimant had declined available employment.

No costs were awarded.

On a contempt motion arising from long-running estate litigation, the court held that the respondent was in contempt of a final settlement order by commencing New York litigation seeking relief duplicative of, and inconsistent with, matters reserved to the Ontario case-management judge.

Applying the civil contempt test, the court found the prior order, read in its full context and spirit, clearly required further formal orders flowing from the minutes of settlement to be remitted to the same judge.

The respondent deliberately commenced the foreign proceeding, and reliance on incorrect legal advice was no defence to liability, though potentially relevant to penalty.

Other alleged acts of obstruction and non-compliance were left unresolved because credibility findings would require viva voce evidence.

The defendant corporation moved to set aside a default judgment obtained after a damages hearing arising from the sale of allegedly faulty woodworking equipment.

The court applied the test under Rule 19.08 of the Rules of Civil Procedure requiring the moving party to explain the default, bring the motion without undue delay, and demonstrate a triable defence.

Although the defendant advanced an arguable defence, the court found the corporate principal knew of service of the statement of claim, delayed bringing the motion for strategic reasons, and provided unreliable affidavit evidence.

The court also found prejudice to the plaintiff due to the death of a key witness involved in the transaction.

Balancing the interests of justice, the motion to set aside the default judgment was dismissed.

The applicant brought a motion to sever a joint tenancy in a matrimonial home following separation and settlement of family law proceedings, and sought discharge of a creditor’s writ of execution registered against the property.

The court considered whether the parties’ conduct during matrimonial litigation constituted a course of dealing sufficient to sever the joint tenancy under the principles set out in Hansen Estate.

The court held that the parties’ actions demonstrated a mutual intention to treat their interests as tenants in common, thereby severing the joint tenancy.

Exercising equitable jurisdiction, the court further ordered that the creditor’s writ be discharged upon payment of $37,000 into court pending determination of entitlement among potential creditors.

The court found insufficient evidence that the creditor would be prejudiced by such an order.

Several First Nations accused sought disclosure of 2013 jury rolls in advance of a planned constitutional application alleging underrepresentation of Indigenous jurors in jury pools.

They argued the records were relevant to a forthcoming application under ss. 7, 11(d), and 11(e) of the Canadian Charter of Rights and Freedoms and to a potential s. 11(b) delay claim arising from the litigation of that issue.

The court held that the requested materials were governed by the third‑party disclosure framework from R. v. O'Connor because the records were held by a separate government entity rather than the prosecuting Crown.

Applying the likely relevance threshold, the court concluded the jury rolls could assist in determining whether delays associated with the application should be characterized as institutional delay or delay attributable to the accused.

Disclosure was therefore ordered subject to privacy undertakings.

The respondents sought costs following the dismissal of the applicant's judicial review application.

The respondents sought substantial indemnity costs, arguing the litigation was duplicative, vexatious, and involved unfounded allegations of bias.

The applicant argued for modest costs to accommodate access to justice.

The Divisional Court agreed with the respondents, finding the judicial review replicated previous litigation and was entirely unfounded.

The court awarded substantial indemnity costs of $15,000 to the Swan respondents and $8,088.46 to the University of Western Ontario.

The applicants sought judicial review of a decision by the Ontario Police Civilian Commission finding the applicant police officer guilty of insubordination.

The officer had failed to comply with an order from the Chief of Police, arguing that a portion of the order requesting tax information was unlawful.

The Divisional Court dismissed the application, holding that even if the tax information request was unlawful, the officer was still obliged to obey the remaining lawful aspects of the order, and his failure to do so constituted insubordination.

The Town of Oakville sought judicial review of an Ontario Municipal Board decision that permitted a temporary change of use for two commercial properties to be farmed, providing a tax benefit.

The temporary change expired before the hearing, and the respondents did not appear.

The Divisional Court declined to hear the application, finding the matter moot and noting that deciding a case with broad policy implications without adversarial submissions would breach procedural fairness.

The tenants appealed an order of the Landlord and Tenant Board terminating their tenancy and evicting them for committing an illegal act (breach of zoning by-law).

The Divisional Court found the Board erred by reversing the onus of proof regarding the zoning issue when there was no evidence the cabin was in the prohibited zone.

Furthermore, the Board erred in law by failing to dismiss the eviction application under s. 83(3) of the Residential Tenancies Act.

The court found the eviction application was brought because the tenants had successfully enforced their legal rights to resist an illegal rent increase, which mandates refusal of the eviction regardless of the landlord's good or bad faith.

The appeal was allowed and the eviction application dismissed.

The appellant appealed a decision regarding child support and section 7 expenses for two disabled children.

The Divisional Court found the application judge erred in concluding the older child, who resided full-time in a care facility, had withdrawn from parental control and was not a child of the marriage.

The court also found the judge misapprehended the evidence regarding respite care subsidies for the younger child.

The matter was remitted to the application judge to recalculate the section 7 expenses and arrears.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision that dismissed her discrimination complaint against her university and an arbitrator.

The applicant alleged that the arbitrator's report, which found her harassment allegations unfounded, was discriminatory and that the arbitrator lost adjudicative immunity.

The Divisional Court dismissed the application, finding it to be a duplicative and meritless attempt to relitigate previous findings, and upheld the HRTO's conclusions on reasonable prospect and adjudicative immunity.