M. Linhares de Sousa

Following a family law trial concerning custody, access, and child support, the court determined costs.

The applicant had been substantially successful at trial and was therefore presumptively entitled to costs under Rule 24(1) of the Family Law Rules.

The court found that the respondent behaved unreasonably throughout the litigation by providing late and incomplete financial disclosure, which caused delays and additional court appearances.

While settlement offers did not trigger mandatory cost consequences under Rule 18(14), the applicant’s offer was considered more reasonable and closer to the final outcome.

The court fixed costs in favour of the applicant in the amount of $18,962.39 inclusive of disbursements and HST, payable forthwith and enforceable through the Family Responsibility Office to Legal Aid Ontario.

Following a successful motion for declaratory and injunctive relief concerning a mutual driveway right-of-way, the successful party sought costs on a substantial indemnity basis.

The court considered the factors under Rule 57.01 of the Rules of Civil Procedure and the effect of settlement offers under Rule 49.10.

The evidence showed repeated reasonable settlement attempts by the successful party and an inflexible litigation position by the opposing party, which contributed to the need for the motion.

The court found that the result obtained was at least as favourable as the formal offer to settle and awarded partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

Costs were fixed at $20,336.52 plus HST.

Supplementary reasons in a family law proceeding confirming the amount of child support payable for a child following earlier reasons for judgment.

The court clarified the applicable child support calculations based on an imputed annual income of $45,000 to the respondent.

Applying the Quebec Child Support Guidelines, the court fixed support at $350 per month for the period June 1, 2007 to December 1, 2011 and $405 per month commencing January 1, 2012.

The decision supplements earlier reasons and finalizes the support amounts payable.

Following a family law motion, the court addressed the issue of costs under Rule 24(1) of the Family Law Rules.

The respondent was substantially successful and sought partial indemnity costs of $4,000.

The court reviewed the bill of costs and found the amount reasonable, noting the applicant agreed with the assessment.

In an addendum, the court corrected an omission in its earlier reasons and ordered reimbursement for medical and dental expense insurance proceeds received by the applicant that belonged to the respondent.

The applicant was ordered to pay the respondent a total of $10,215.77 including the additional reimbursement.

Following a family law decision concerning where a child would reside during the school year, the successful party sought costs.

The court applied Rule 24 of the Family Law Rules and concluded that the respondent in the main proceeding had been substantially successful on the primary issue.

The court reviewed the parties’ settlement offers and conduct during the litigation and found neither party acted in bad faith, although one offer approached the result obtained at trial.

Considering the parties’ comparable legal fees and financial circumstances, the court determined that fairness required an award of partial costs to the successful party.

Costs were fixed at $20,000 inclusive of HST.

In a child protection proceeding under the Child and Family Services Act, the Society brought a motion for summary judgment seeking a finding that the child was in need of protection and an order for Society wardship for six months.

The evidence demonstrated significant parent-child conflict, the child’s refusal to have contact with the mother, and prior sexual abuse occurring after the mother allowed an adult male to reside in the home and share a bedroom with the child.

The court found there was no genuine issue requiring a trial, as the material facts were largely undisputed and the mother failed to rebut the Society’s prima facie case.

The court concluded that the child was in need of protection under ss. 37(2)(c), (f), and (g) of the CFSA and that continued Society care best served the child’s interests.

Summary judgment was granted and Society wardship ordered for six months.

The respondent father brought a motion to change existing custody, access, and child support orders regarding his five children, who were in the legal custody of their maternal grandparents.

He sought custody of one child, unsupervised access to three younger children, and a reduction or elimination of child support arrears, arguing a material change in circumstances as he was studying medicine abroad.

The court found no material change regarding child support, as the father remained intentionally underemployed, and maintained the arrears.

Custody of the older child was reserved pending a report from the Office of the Children's Lawyer, and access to the younger children was ordered to remain supervised.

The father was also prohibited from bringing further child support proceedings until he paid outstanding costs awards.

The applicant mother sought sole custody of the parties' seven-year-old child, supervised access for the respondent father, and child support based on imputed income.

The father sought sole custody and contested the imputation of income.

The court granted the mother sole custody, finding she had been the primary caregiver and provided a stable environment, while the father's conduct was inconsistent and not child-focused.

The court ordered supervised access for the father due to his lack of insight and threats to remove the child from the jurisdiction.

Income of $45,000 was imputed to the father for child support purposes due to his failure to provide financial disclosure, with retroactive support ordered.

The defendant appealed a master's order requiring production of a lawyer's handwritten notes taken during a voluntary interview with the plaintiff when he was a potential witness in related litigation.

The defendant argued the notes were protected by litigation privilege as counsel's work product.

The court held that, to the extent the notes merely recorded the plaintiff's statements, litigation privilege did not apply because a party cannot claim confidentiality over statements made by the opposing party.

However, portions of the notes reflecting counsel's commentary, strategy, or analysis could remain privileged and be redacted.

The appeal was dismissed and the master's order permitting production with potential redactions was upheld.

The applicant, facing serious and complex drug and criminal organization charges, brought a Rowbotham application seeking a stay of proceedings until state-funded counsel was provided.

He had been refused legal aid due to incomplete financial documentation regarding the disposition of several properties.

The court found that the applicant required counsel for a fair trial and that he was indigent, having exhausted his financial resources and being unable to provide further documentation to Legal Aid.

The court granted a conditional stay of proceedings until funding for counsel was provided.

However, the court dismissed the applicant's request to appoint specific counsel at a specific hourly rate, noting that the court lacks jurisdiction to set fees or dictate how Legal Aid retains counsel.

The plaintiff brought a motion seeking declarations confirming a registered right-of-way over a mutual driveway between neighbouring properties and an injunction preventing interference with that right-of-way.

The parties partially settled the issue of the existence of mutual rights-of-way.

The dispute remained regarding a barrier constructed by the defendant across the driveway which blocked access to the plaintiff’s property.

Applying the test for interlocutory injunctions from RJR‑MacDonald Inc. v. Canada (Attorney General), the court found that the barrier materially interfered with the plaintiff’s property rights and caused ongoing irreparable harm.

The balance of convenience favoured protecting the plaintiff’s recognized right-of-way, and injunctive relief was granted requiring removal of the obstruction.

The appellant appealed a decision of the Consent and Capacity Board upholding a Community Treatment Order (CTO) under the Health Care Consent Act and Mental Health Act.

He argued that the statutory criteria for the CTO were not satisfied and that the Board’s decision was unreasonable, particularly given medication side effects.

The court held that the standard of review for the Board’s decision was reasonableness, except where statutory criteria raised questions of jurisdiction.

After reviewing the evidence, including the physician’s testimony and psychiatric history, the court found that the statutory criteria were met and that the Board’s decision was reasonable.

The appeal was therefore dismissed.

The children's aid society brought a motion to vary a temporary consent access order to require the father's access to his one-year-old child be supervised.

The motion was prompted by the discovery that the father had left the child unattended while he went to the store.

The mother supported the motion, while the father sought to maintain unsupervised access.

The court found that the father's actions demonstrated substandard parenting and justified a change in the access order.

However, to maintain the positive relationship between the father and child, the court ordered that access be supervised by the paternal grandparents, with the father permitted up to four hours of unsupervised access during the day.

The respondent brought a motion seeking retroactive adjustment of child support and contribution to the children’s special or extraordinary expenses under s. 7 of the Child Support Guidelines.

The applicant father opposed aspects of the motion and brought his own motion concerning parenting arrangements, which the parties resolved by agreement during the hearing.

The court found the children primarily resided with the respondent and ordered the applicant to pay full table child support based on his income, retroactive to May 1, 2010.

The court also determined the parties’ proportionate responsibility for section 7 expenses at 70% for the applicant and 30% for the respondent and confirmed that certain extracurricular expenses were reasonable.

Arrears and ongoing monthly contributions toward section 7 expenses were ordered, along with annual financial disclosure and adjustments.

The appellant appealed his conviction for careless storage of ammunition after burying hundreds of rounds of military rifle ammunition in shallow holes in a public county forest.

He argued the trial judge erred in assessing the risk of harm to the public and improperly took judicial notice that public forests are used by the public.

The Superior Court of Justice dismissed the appeal, finding that abandoning control of inherently dangerous material in a public domain constituted a marked departure from the standard of care, and that the trial judge's use of judicial notice regarding public land usage was appropriate.

The applicant brought a motion to determine the calculation of child support arrears owed by the respondent pursuant to Minutes of Settlement signed in September 2011.

The court determined the retroactive date for child support, the applicable Federal Child Support Guidelines table amounts based on the respondent's province of residence, and the appropriate credits for child support already paid, travel costs, and section 7 expenses.

The court ordered the respondent to pay $18,811.44 in child support arrears and $8,000 in costs.

The applicant father brought a motion to change an existing joint custody order after relocating from Ottawa to Halifax for employment and health reasons.

He sought to have the parties' 8-year-old daughter reside with him in Halifax during the school year.

The respondent mother opposed the move, seeking to maintain the child's primary residence in Ottawa.

Applying the Gordon v. Goertz framework, the court found that while the father's move constituted a material change in circumstances, relocating the child to Halifax would be highly disruptive to her established routines, schooling, and relationships in Ottawa.

The court ordered that joint custody continue, with the child's primary residence remaining with the mother in Ottawa, and granted the father generous holiday parenting time.

Following a family law trial addressing parenting issues, interpretation of a cohabitation agreement, division of property, retroactive and ongoing child support, and retroactive and ongoing spousal support, the court determined the appropriate costs award.

The applicant was substantially successful on the majority of the financial issues, including the interpretation of the cohabitation agreement, equal division of the matrimonial home, retroactive and ongoing child support, and spousal support.

Although both parties made settlement offers, none triggered the mandatory consequences under Rule 18(14), though the applicant’s offers were generally closer to the trial outcome.

Considering the presumption of costs under Rule 24(1), the parties’ conduct, the high-conflict nature of the litigation, and the substantial legal expenses incurred, the court ordered a significant contribution to the successful party’s costs.

The applicants sought a declaration of ownership and vesting order over a triangular waterfront parcel based on adverse possession.

The claim relied on decades of community use by a local residents’ association that maintained a dock, stored boats, and used the area for recreational access to the river.

The court accepted that the use was open, notorious, peaceful, and continuous for many years and arose from a mutual mistake about the boundary between adjoining lots.

However, the applicants failed to prove that their possession was adverse and exclusive, as the legal owners and their lessees continued to use the land alongside the group.

Because the owners’ possession was never discontinued and no intention to exclude them was established, the elements of adverse possession were not satisfied.

The applicant and respondent separated after a 10-year marriage.

At trial, the court resolved several parenting issues, including extracurricular activities, telephone access, and the use of a parenting coordinator.

The court imputed an income of over $90,000 to the respondent, finding he was intentionally under-employed and had unreasonably depleted his assets through risky stock trading.

Consequently, the respondent's claim for spousal support was dismissed, and he was ordered to pay his proportional share of retroactive and ongoing section 7 expenses.

Finally, the court interpreted the parties' pre-marital cohabitation agreement, finding that it clearly excepted the matrimonial home from its operation, entitling the applicant to one-half of its value.