Philip Viater

The mother sought sole custody of the parties' two children, alleging severe parental alienation by the father.

The father also sought sole custody.

The court found that the father had engaged in a campaign of denigration against the mother, inappropriately involved the children in adult financial disputes, and empowered the children to disrespect and reject their mother.

The court awarded sole custody to the mother and suspended the father's access pending his completion of the first phase of intensive therapy, finding that the father's alienating behaviour was severely detrimental to the children's best interests.

The parties, who separated in 2015 but continued to live in the same home, brought omnibus motions regarding child care, exclusive possession, and financial issues.

The court found the high-conflict living situation was causing severe emotional harm to the children, including a suicide attempt by one child.

To protect the children, the court awarded temporary custody and exclusive possession of the matrimonial home to the applicant, ordering the respondent to vacate.

The court also ordered the immediate sale of the home, an interim disbursement of $100,000 from the sale proceeds for a business valuation, and fixed temporary child support based on previously imputed income.

This endorsement addresses scheduling and the presiding judge for summary judgment motions brought by two defendants, Frank Zito and Alan Keery.

The judge, appointed under Rule 37.15 to hear all motions in the action, extended a deadline for one defendant's materials and established a new timetable for the motions.

However, citing policy considerations akin to those in Rule 50.10(1) and the Court of Appeal's decision in Royal Bank of Canada v. Hussain, the judge declined to hear the summary judgment motions because the plaintiff did not provide written consent as required by Rule 37.15(2) for a Rule 37.15 judge to preside over a trial-like proceeding.

The judge will continue to hear procedural motions in the action.

The applicant brought a motion seeking extensive disclosure of the respondent's medical and personal records, alleging mental health issues.

The respondent opposed, arguing the requests were irrelevant, privileged, and constituted a fishing expedition.

The court dismissed the applicant's motion, finding no evidence to support the mental health allegations, inferring an element of retaliation given the timing of the requests after criminal charges were laid against the applicant, and concluding the requests were overly broad.

The court awarded $5,000 in costs to the respondent, payable by September 30, 2017, or offset against future financial claims.

The applicant sought an order extending the time to bring a claim for equalization of net family property and to set aside a separation agreement.

The respondent brought a cross-motion for summary judgment.

The court dismissed the applicant's motion, finding that there were no apparent grounds to set aside the separation agreement, that the significant delay in bringing the claim was not incurred in good faith, and that no substantial prejudice would result from the delay.

Consequently, the respondent's cross-motion for summary judgment was not addressed.

The applicant mother brought a motion for summary judgment to declare a separation agreement valid and enforceable, and to compel the respondent father to pay his share of disputed section 7 expenses.

The father conceded the agreement's validity but argued he was not obligated to pay the expenses because he had not consented to them.

The court interpreted the agreement and found that consent was only required for expenses outside the enumerated categories or budgetary envelopes.

The court further held that even if consent was required, the father had unreasonably withheld it.

The father was ordered to pay $15,501.00 for his share of the expenses.

At a case conference in a high-conflict family law proceeding, the court noted the children were living in increasingly chaotic and harmful circumstances.

The respondent mother had been granted sole authority to decide the son's school, but the son was not attending regularly and was completely detached.

Recognizing that the Superior Court could not relieve the chaos and that the Children's Aid Society was deferring to the court, the judge ordered a stay of all proceedings, including the applicant father's trust claims, to allow the Society to investigate and potentially apprehend the children.

The Applicant and Respondent, parents of one child, underwent a lengthy trial concerning custody, parenting time, child support, and property equalization.

The court granted sole custody to the Respondent, establishing a detailed parenting schedule.

It imputed income to the Applicant for child support purposes and ordered retroactive child support.

The Respondent's claim for an unequal division of net family property was denied, and she was ordered to pay an equalization payment to the Applicant.

Following a motion for interim custody where a shared parenting regime was ordered, the respondent sought costs of $38,966 on a full recovery basis.

The applicant opposed, arguing for no costs or costs reserved to the trial judge.

The court found the respondent was the more successful party but declined to apply Family Law Rule 18 as her offer to settle was not strictly met.

Applying the factors in Family Law Rule 24(11) and the objectives of costs, the court awarded the respondent costs on a partial indemnity basis fixed at $17,500 for fees plus HST and disbursements.

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.

This decision addresses a Motion to Change seeking to vary child support provisions of a Separation Agreement dated November 12, 2008.

The applicant sought to reduce child support retroactively and prospectively based on the Child Support Guidelines and the number of eligible children, and to discharge arrears.

The respondent sought dismissal of the motion and recovery of arrears.

The court found significant ambiguity and inconsistency in the Separation Agreement's child support clauses, particularly regarding the fixed amount versus eligibility criteria.

The court imputed an income of $90,000 per annum to the applicant and adjusted child support retroactively from May 1, 2013, and prospectively, incorporating a "premium" component from the original agreement and an offset for a period when one child resided with the applicant.

The court also imputed an income of $30,000 to the respondent for offset purposes.

The applicant brought a motion seeking an extension of time to appeal an order directing the sale of the matrimonial home.

The applicant filed the motion 11 months late, initially filing in the wrong court.

Applying the five-factor test for extending time to appeal, the court found the delay was lengthy, the explanation unpersuasive, and the proposed appeal devoid of merit as the record clearly showed the applicant had consented to the sale.

The motion was dismissed with costs awarded to the respondent.

The applicant father sought an order reappointing a social worker to conduct an updated s. 30 Children’s Law Reform Act parenting assessment and requested that both parties share the estimated $10,000 cost.

The respondent opposed the request, arguing there had been no significant developments since the original assessment and that the cost would cause financial hardship.

The court held that an updated assessment should only be ordered where meaningful new developments justify the expense.

The father’s reliance on the successful implementation of access and speculative concerns about the mother did not constitute significant developments.

Considering the substantial prior cost of the assessment, the absence of new evidence, the respondent’s financial hardship, and lack of agreement on the assessor, the court declined to exercise its authority to order a new assessment.

On competing family law motions, each spouse sought an order requiring the other to pay the expenses associated with a jointly occupied matrimonial home.

The court considered its authority under section 24(1)(e) of the Family Law Act to allocate responsibility for repair, maintenance, and liability expenses of a matrimonial home notwithstanding possession.

Both spouses remained living in the home with their children following separation, but the father’s income had significantly decreased while the mother earned substantially more.

The court held that allocation of home expenses between two spouses in joint possession may be appropriate during transitional periods before sale of the home.

Given the parties’ disproportionate financial means, the court ordered the respondent spouse to cover the mortgage, insurance, utilities, and taxes, while the applicant spouse contributed $1,000 per month on a temporary without‑prejudice basis subject to future accounting.

The applicant filed a human rights application alleging discrimination in employment based on disability after the respondent transferred her to a different campus.

The respondent requested a deferral because the applicant had commenced a civil proceeding based on the same facts.

The Tribunal found that the civil claim sought remedies for human rights infringements based on the same facts as the application.

Consequently, the Tribunal determined it lacked jurisdiction under section 34(11)(a) of the Human Rights Code and dismissed the application.

This is a costs decision arising from a motion to reinstate the respondent father's pleadings on financial issues in a family law application.

The father's pleadings had been struck for non-compliance with a disclosure order.

After the father substantially complied with the disclosure order, he brought a motion to reinstate his pleadings.

The court granted the motion, finding that the father had made more than token efforts to comply and that justice required the matter to proceed to trial on the merits.

The applicant mother opposed the motion and refused to consent to reinstatement despite the father's repeated requests and offers to settle.

The court found the mother acted unreasonably in refusing to consent and awarded costs to the father.

The respondent father brought a motion to reinstate his pleadings on financial issues after they were struck for non-compliance with a disclosure order.

The applicant mother opposed reinstatement, arguing the father remained in non-compliance with both the disclosure order and child support obligations.

The court granted the motion, finding that while the father's disclosure had not been perfect, his efforts to comply after the initial striking order were more than token attempts.

The court determined that justice would be best served by allowing the father to participate at trial on the merits, consistent with the principle that adversarial proceedings should be maintained whenever possible.

The plaintiff brought a motion for summary judgment seeking remedies under a mortgage relating to a motel business, alleging the mortgagor breached a restriction on transferring interests by entering into a trust agreement transferring shares to a new spouse.

The defendants argued the trust agreement did not constitute a default, that it was signed under duress, and that the plaintiff knew of and consented to it.

Additional issues arose concerning whether the mortgage provision restricting transfers to a new spouse was contrary to public policy and whether the interest waiver clause constituted an unenforceable penalty.

The court held that the dispute involved significant factual and credibility issues, including duress, consent, and the surrounding context of the agreements.

As these issues required assessment of witness credibility and the broader factual matrix, summary judgment was inappropriate.

The plaintiff commenced a Small Claims Court action seeking recovery of funds advanced under an agreement whereby the defendant undertook to source and manufacture commercial waffle machines in China.

The plaintiff paid over $50,000 but never received a viable prototype or manufactured units in accordance with the contractual specifications.

The court found the defendant’s explanations for the missing prototype and lack of documentation unsatisfactory and preferred the evidence of the plaintiff’s witness.

Applying the doctrine of total failure of consideration, the court held the plaintiff received no benefit under the agreement and was entitled to rescind and recover the advance payments within the Small Claims Court monetary limit.

Judgment was granted for $25,000 plus prejudgment and postjudgment interest and costs.

The respondent father brought a motion seeking unsupervised interim access to the child in accordance with a prior court order, while the applicant mother brought a cross‑motion to suspend the access order and require supervised access at a centre along with interim sole custody.

The mother alleged physical abuse and safety concerns during access visits, relying on affidavits from relatives and friends, photographs of minor bruising, and statements attributed to the three‑year‑old child.

Investigations by the Children’s Aid Society and police found no protection concerns or evidence of excessive force by the father.

The court found the mother’s evidence largely hearsay and unsupported by objective evidence, and concluded she had repeatedly resisted and interfered with court‑ordered access.

The court reinstated the previously ordered schedule progressing from supervised access to unsupervised and overnight visits, and dismissed the mother’s cross‑motion.