Richard Marshall Van Buskirk

The appellant appealed a Family Court order compelling compliance with prior security-for-costs and costs orders in ongoing family proceedings.

The Court of Appeal held it lacked jurisdiction because the order was a final Family Court order made only under provincial legislation, engaging s. 19(1)(a.1) of the Courts of Justice Act.

The court emphasized that such appeals lie to the Divisional Court, not the Court of Appeal.

It also noted procedural options to avoid delay where jurisdictional transfer issues arise, including consent transfer orders or motions to quash.

The court dismissed the applicant’s motion to set aside a previous order dismissing her claim for life insurance proceeds allegedly paid in violation of a separation agreement.

The decision addresses the availability of summary judgment in family law, the requirements for setting aside an order, and the jurisdictional boundaries between the Unified Family Court and the general Superior Court.

The court found no arguable defence on the merits and concluded that the Unified Family Court was not the proper forum for the applicant’s claim against the respondent.

The court heard a 6-day trial concerning parenting, decision-making, and child support for a 5-year-old child.

Key issues included primary residence during the school year, the parenting schedule, school attendance, medical and dental decision-making, and imputation of income to the mother.

The court found the mother's credibility lacking on serious allegations against the father and her income.

It determined that the child's primary residence should be with the father in Kitchener-Waterloo due to stability and existing support systems, maximizing the mother's parenting time with three weekends per month and one overnight.

Joint decision-making for medical and dental care was ordered.

The court imputed an income of $42,900 per annum to the mother, effective January 1, 2024, based on her earning capacity in medical aesthetics, and ordered her to pay child support of $392 per month if she remains more than 30 km from Kitchener.

The applicant mother brought an urgent motion seeking sole custody and a return to the pre-pandemic parenting schedule, alleging the respondent father was withholding the children due to her essential nursing work during the COVID-19 pandemic.

The court, acting as Triage Judge, found the matter urgent, citing the mother's risk of losing employment and the children's well-being.

The court directed the respondent to file responding materials and scheduled an expedited teleconference hearing, emphasizing the need for both parties' perspectives before a temporary decision.

Motion for interim temporary access to a child following an emergency motion.

The applicant mother sought to maintain primary residence and modify the respondent father's access schedule from two overnight midweek visits to evening visits only.

The respondent father sought to set aside the interim order and establish a shared parenting arrangement with significantly expanded access.

The court confirmed the established status quo of the mother as primary caregiver with the father having alternate weekend access and one midweek overnight visit, finding no compelling reasons to change the arrangement and noting the father's conduct in withholding the child created concerns about his willingness to respect the mother's relationship with the child.

Following a family law trial concerning equalization, retroactive support, and spousal support, both parties sought costs based on competing offers to settle.

The court compared the offers with the trial outcome and determined that the applicant’s offer was more favourable to the respondent than the final result in respect of equalization and pension division, although the trial result on spousal support fell between the parties’ offers.

The applicant was unsuccessful on certain issues, including occupation rent and aspects of spousal support.

Considering the mixed results and the respondent’s financial circumstances, the court declined to award substantial indemnity costs.

Partial indemnity costs were awarded to the applicant.

Following the breakdown of a long-term marriage, the court determined issues of equalization of net family property, retroactive child support, spousal support, occupation rent, and disposition of the matrimonial home.

The court fixed the separation date as January 1, 2006 based on admissions in the pleadings.

Claims relating to alleged debts to a parent and certain credit card liabilities were rejected for lack of proof.

Retroactive child support was ordered in a reduced amount applying the principles from D.B.S. v. S.R.G., and spousal support was ordered prospectively and retroactively with income imputed to the recipient.

A claim for occupation rent was dismissed as the parties had implicitly accepted the status quo following separation.

Following judgment in a civil forfeiture proceeding, the court determined costs based on written submissions.

The applicant had made a formal Rule 49 offer to settle that the respondents rejected prior to cross-examinations and the hearing.

The court found that the judgment obtained was at least as favourable as the offer and therefore the cost consequences under Rule 49.10(1) applied, entitling the applicant to partial indemnity costs before the offer and substantial indemnity costs afterward.

Considering Rule 57.01 factors, including the complexity of the matter, the public interest role of the applicant, and credibility findings against the respondents, the court fixed costs payable to the applicant.

Costs of $10,000 inclusive of fees and disbursements were ordered jointly and severally against certain respondents.

The Attorney General sought forfeiture of $138,650 seized during a police search conducted in the course of a cocaine trafficking investigation.

The respondents asserted that the funds were legitimate family savings accumulated for education and housing.

The court rejected the respondents’ explanations as inconsistent and not credible, noting the storage method of the cash, the presence of a drug dealer’s fingerprint inside the safe where the majority of the funds were stored, and evidence linking the residence to ongoing drug trafficking.

The court also found that the respondents had misrepresented their financial circumstances and failed to disclose the cash assets while receiving government disability benefits.

The court concluded on a balance of probabilities that the funds were proceeds or instruments of unlawful activity under the Civil Remedies Act, 2001 and ordered forfeiture.

Following dismissal of a family law application, the court determined the appropriate costs award.

Although the respondent was wholly successful, the court found the application raised a unique issue for which counsel could not identify directly applicable jurisprudence.

The court concluded that the proceeding was not frivolous or unreasonable despite the applicant’s lack of success.

As a result, the successful respondent was awarded costs on a partial indemnity scale rather than a higher scale.

Costs were fixed in a lump sum inclusive of disbursements and taxes and ordered payable forthwith.

The applicant sought a declaration dividing the respondent’s Canadian Forces pension under the federal Pension Benefits Division Act and requiring execution of documents to implement the division.

The court held that the federal legislation does not create an independent entitlement to pension division but merely provides a mechanism for implementing equalization of pension assets.

Entitlement to share in the pension must first arise through provincial family property legislation.

Because the claim was effectively an equalization claim brought more than six years after separation, it was barred by the limitation period under s.7(3) of the Family Law Act.

The application was therefore dismissed.

The plaintiffs sought damages following a slip and fall in the lobby of a hotel property that resulted in a knee injury.

Liability proceeded by default as the defendant did not appear, and the court conducted an assessment of damages.

The court accepted that the plaintiff continued to experience knee pain and reduced mobility but found the evidentiary record lacked sufficient expert medical evidence establishing causation, diagnosis, or long-term prognosis.

The court concluded the injury likely represented an aggravation of a pre-existing condition and awarded modest general damages along with limited damages under the Family Law Act and special damages.

Costs were reduced in light of the modest recovery and the fact the claim fell within the Small Claims Court monetary jurisdiction.