Robert A. Haas

The Court of Appeal for Ontario dismissed the appeal of Ilinka Armstrong and Dean Tully from an order removing them as estate trustees for the estate of Dan Muscat and denied leave to appeal a related costs order.

The court found that Armstrong was in a conflict of interest due to her romantic relationship with a potential purchaser of the estate’s business, failed to disclose this conflict, and did not undertake proper due diligence.

The court upheld the application judge’s decision to remove the trustees and order them to pay costs personally.

The parties separated after a 13-year marriage.

The court resolved outstanding issues regarding Christmas parenting time, income determination, child support, spousal support, and equalization of net family property.

The court imputed significant corporate pre-tax income and personal benefits to the applicant father, setting his 2023 income at $392,054.

The respondent mother was awarded compensatory spousal support, retroactive child and spousal support, and an equalization payment, with offsets applied for the applicant's post-separation overpayments on joint debts.

The parties brought cross-motions regarding interim child support in a shared parenting arrangement.

The respondent sought to impute income to the applicant, who had left full-time employment to attend teacher's college.

The court found the applicant was intentionally under-employed but that her educational goals were reasonable.

Applying the Drygala framework, the court imputed income to the applicant based on a percentage of her previous earnings and ordered the respondent to pay $425 per month in interim child support, considering the significant disparity in the parties' financial circumstances.

The appellant, Charles James Hevey, appealed a finding of contempt made against him in a family law proceeding for allegedly violating two preservation orders.

The Court of Appeal found that the first preservation order was not violated as the transactions did not diminish asset value and the appellant did not personally benefit.

Regarding the second order, the court determined that the order lacked clarity, particularly concerning the interplay between paragraphs permitting business operations and reporting requirements.

Applying the *Carey v. Laiken* test for civil contempt, the court concluded that the order did not clearly and unequivocally prohibit the impugned mortgage.

Consequently, the contempt findings and associated sanctions were set aside.

This endorsement addresses the penalty phase following a finding that the respondent was in contempt of two prior court orders.

The court determined the quantum of fines for each contempt finding, specifying that these fines should be payable to the applicant rather than the Minister of Finance.

The decision also outlined the payment terms for the fines and costs, linking them to the outcome of a separate commercial proceeding, and clarified conditions under which the respondent could seek further court orders despite existing sanctions.

Following an interim parenting motion where the respondent mother was successful in obtaining sole decision-making and primary care, the court determined the quantum of costs.

The respondent sought $12,000, while the applicant argued for $5,000.

Applying the factors under Rule 24(12) of the Family Law Rules, including findings of unreasonable behaviour by both parties, the court fixed costs at $8,000 payable by the applicant to the respondent.

The parties brought urgent motions for interim parenting and child support.

The mother sought primary care and sole decision-making, alleging a history of family violence and alcohol abuse by the father, who had recently returned from working in Alberta and quit his job.

The court found the status quo prior to separation was that the mother was the primary caregiver.

The court granted the mother interim primary care and sole decision-making responsibility, ordered a specified parenting schedule for the father with alcohol prohibitions, and imputed income to the father for the purpose of interim child support.

The applicant mother brought a motion for the return of the parties' six-year-old child from the respondent father in Nova Scotia to her care in Ontario.

The father had retained the child after a summer visit, citing concerns about the mother's new partner, who had a criminal record and history of substance abuse.

Following a previous interim order requiring evidence of the new partner's rehabilitation, the court reviewed the new evidence, which demonstrated the partner's prosocial behavior, sobriety, and positive relationship with the child.

The court found that the minimal risk of relapse was outweighed by the benefit of returning the child to his primary caregiver and ordered the child returned to the mother's care.

The respondent father sought to resume access to the child, which the applicant mother had unilaterally suspended due to COVID-19 and the child's and mother's underlying health conditions.

The court found a material change in circumstances due to the pandemic and health risks but emphasized the presumption of continuing parenting arrangements.

It ordered a modified access schedule, suspending mid-week in-person access in favor of virtual contact and resuming weekend in-person access with strict adherence to COVID-19 safety protocols, facilitated by the father's adult daughter.

The father's request for a police assist order was dismissed.

Following a 19-day trial where the maternal grandmother was granted custody of her grandson, she sought costs against the respondent father and mother.

The court, applying Rule 24 of the Family Law Rules, found the maternal grandmother to be substantially successful, particularly on the primary issue of custody.

Despite offers to settle not being more favourable than the final order, and considering the importance and complexity of the case, the court awarded the maternal grandmother $85,000 in costs against the father, inclusive of disbursements and taxes, taking into account his ability to pay.

No costs were awarded for or against the mother.

This case concerns a custody and access dispute over a child, Dallas David Ross, born in 2012.

The applicant, the child's maternal grandmother, sought custody, supported by the child's mother.

The respondent father also sought custody, asserting his current ability to care for the child despite past mental health issues and domestic conflict.

The court, applying the 'best interests of the child' principle, found the maternal grandmother to be the child's psychological parent, having provided a stable home environment since January 2017 and significant care prior.

The father's past conduct, including domestic violence and suicide threats witnessed by the child, and his incomplete mental health treatment, weighed against his claim.

The court granted custody to the maternal grandmother, with structured parenting time for both parents and child support orders.

The plaintiff and defendant both moved for summary judgment regarding an aborted real estate transaction.

The plaintiff sought damages for anticipatory breach, while the defendant counterclaimed.

The court found that the evidence on damages was inadequate and that determining liability alone via partial summary judgment would be inefficient and risk inconsistent findings.

Both motions for summary judgment were dismissed, and the matter was directed to trial.

The applicant was successful on a motion for leave to proceed and in dismissing the respondent's cross-motion for security for costs.

The court awarded the applicant costs of $8,800, inclusive of disbursements and HST, noting the tortuous history of the litigation and incorporating costs reserved from previous motions.

The applicant mother brought an undefended motion for summary judgment seeking a divorce, sole custody, restricted access, and child support.

The court found no genuine issue requiring a trial, noting the respondent father's failure to participate, comply with disclosure orders, or address evidence of alcohol abuse and child protection concerns.

The court granted sole custody to the applicant, ordered supervised access conditional on the respondent completing a hair follicle test and a parenting program, and imputed an annual income of $60,000 to the respondent for child support purposes due to his failure to disclose and intentional underemployment.

The parties, involved in two cross-applications concerning alleged competitive conduct, returned to court seeking further documentary production.

The court noted their non-compliance with previous procedural orders from Justice Raikes, including timelines for discovery and setting the matter down for trial.

Emphasizing the principle of proportionality under the Rules of Civil Procedure, particularly Rules 1.04(1.1) and 29.2, the court declined to order the wide-ranging production sought.

The judge highlighted the excessive volume of material already produced and the relatively low value of the dispute, stressing that discovery must be focused, relevant, and proportionate.

The parties were advised to refine their requests after examinations for discovery and a Rule 37.15 order.

This endorsement provides preliminary procedural orders following arguments on "second production motions" in two related court files involving cross-applications.

The court directed the parties to immediately seek an order under Rule 37.15 for the appointment of a single judge to hear all motions, make procedural orders, and give directions as necessary.

The court also ordered that parties are not required to provide a chart of requests or a table of concordance, and that counsel must prepare and exchange Bills of Costs in advance of every court appearance, providing copies to their clients.

The parties brought motions for various interim relief concerning custody, child support, and spousal support.

The court awarded interim sole custody of the two children to the respondent, permitting her to relocate with the children to Strathroy.

The applicant was granted generous interim access.

The court found the respondent to be the primary caregiver prior to separation and considered the applicant's alcohol consumption as a negative factor impacting parenting ability.

The previous "nesting order" was deemed not in the children's best interests due to the high-conflict relationship between the parents.

The applicant was ordered to pay interim child support of $1,176 per month and interim spousal support of $350 per month, while remaining solely responsible for the family home expenses.

The parties separated and initially shared a 50-50 parenting arrangement.

Following the sale of the matrimonial home, the applicant father moved temporarily, and the respondent mother relocated to Dorchester, successfully obtaining an order to change the child's school.

On this motion, the court considered whether to maintain the week-about schedule.

The court ordered interim joint custody with primary residence to the respondent mother, finding the week-about schedule too onerous given the new school and residence locations, and granted the applicant father generous access.