Sarah Kennedy

Following the settlement of a motion to change support for an adult child with a catastrophic brain injury, the parties sought costs.

The applicant sought up to $27,339.90, while the respondent sought $10,944.05.

The court determined that the applicant was the successful party because she established the core issue: the respondent's ongoing obligation to pay child support, despite his initial opposition.

However, the respondent achieved considerable success in defeating claims for spousal support and broad retroactivity, and had made a favourable offer to settle.

Balancing these factors, the court awarded the applicant moderate partial indemnity costs of $8,500.

The respondent father brought a motion for directions under s. 30(11) of the Children's Law Reform Act, seeking to provide a 60-page affidavit with 400 pages of exhibits to the court-appointed parenting assessor.

The applicant mother opposed, arguing the affidavit was an advocacy document drafted specifically to influence the assessor.

The court dismissed the motion, finding that while independent records are appropriate, an advocacy affidavit drafted specifically for the assessor is unnecessary and risks priming or confirmation bias.

The court directed that the affidavit not be provided unless specifically requested by the assessor.

The respondent brought a motion seeking unsupervised or supervised parenting time with the parties' two children.

The applicant opposed unsupervised access and sought supervised access through professional services, also bringing a cross-motion to impute income to the respondent for child support purposes.

The court, considering allegations of family violence and the children's best interests, ordered temporary supervised parenting time for the respondent by his uncle, finding this a sufficient and proportionate response to safety concerns.

The court dismissed the applicant's cross-motion to impute income, concluding that the respondent was not intentionally underemployed or unemployed given his termination due to criminal charges and his efforts to start a new business.

The parties separated in 2019 after a six-year relationship.

The applicant mother moved to Ottawa with the child in 2020 to pursue employment and education, while the respondent father remained in Cobden to work as a dentist.

Following a trial, the court ordered joint decision-making responsibility and primary residence with the mother, with a detailed parenting schedule for the father.

The court found the mother entitled to compensatory spousal support due to her role as primary caregiver while the father attended dental school, ordering $4,000 per month for four years.

The court also imputed an annual income of $24,000 to the mother while she pursued her master's degree, and ordered her to pay an equalization payment and post-separation adjustments for the matrimonial home.

The moving party brought a motion for leave to appeal an order of Carter J. dated August 10, 2022.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay the responding party $5,000 in all-inclusive costs.

The appellant appealed a motion judge's decision granting the respondent sole decision-making authority over their child.

The appellant argued the motion judge erred in admitting hearsay evidence and finding a material change in circumstances.

The Divisional Court dismissed the appeal, holding that hearsay evidence is admissible on a motion to change under the Family Law Rules, and that compelling evidence, including the child's escalating behavioural crisis and the parents' inability to communicate, supported the finding of a material change.

The respondent mother sought costs of $7,200 on a substantial indemnity basis following her successful defense of the applicant father's motion to compel the interim sale of the matrimonial home.

The father argued for mixed success and that the parties should bear their own costs due to the mother's alleged unreasonable conduct.

The court found the mother was the successful party and that her conduct was reasonable.

However, the court declined to award substantial indemnity costs, finding the father's refusal to accept an offer to purchase his share did not warrant an elevated award.

Costs were fixed at $3,600 payable by the father to the mother.

The applicant father brought a motion for the interim sale of two jointly owned properties under s. 2 of the Partition Act.

The respondent mother consented to the sale of the rental property but opposed the sale of the family home, seeking exclusive possession.

The court found that the mother's right to claim exclusive possession under the Family Law Act was extinguished upon the parties' divorce.

However, the court denied the father's request to sell the family home, finding that he failed to plead the Partition Act in his original application.

Furthermore, the court exercised its discretion to refuse the interim sale under the Partition Act, citing the hardship it would cause the mother and children, the mother's offer to purchase the father's interest, and the need to resolve equalization issues at trial.

The respondent brought a Form 14B motion seeking an order permitting service by email and leave to file an Affidavit of Divorce, as the applicant had not pursued his simple divorce application.

The court noted that under the COVID-19 emergency directives, an order for email service was unnecessary.

The court dismissed the motion for leave to file the affidavit, explaining that a motion for divorce is not a procedural motion and cannot be processed during the current suspension of regular court services.

The respondent was granted leave to bring a further motion seeking leave to file an Answer.

The Applicant mother brought an urgent motion regarding timesharing for the parties' four children after the Respondent father refused to return them following March break, citing COVID-19 concerns, and then unexpectedly moved back to the Ottawa area, seeking to revert to an old timesharing schedule.

The court found the father in default of the mother's prior motion to change the final order and rejected his interpretation of the existing order regarding homeschooling during school closures.

The court granted temporary orders for the children to primarily reside with the mother during the regular school year, with the father having alternate weekend access, reflecting the status quo since September 2019.

The father was allowed time to file a response to the mother's motion to change.

The respondent wife brought a motion seeking various interim relief, including financial disclosure, release of trust funds, partition and sale of the matrimonial home, and an increase in spousal support.

The court ordered the applicant husband to provide the requested financial disclosure and released $68,000 from trust to pay the wife's tax arrears.

The court dismissed the wife's requests to set aside the husband's exclusive possession and the restraining order against her.

However, the court ordered the pre-trial partition and sale of the jointly owned matrimonial home, finding the husband had not established a competing interest under the Family Law Act that would be defeated by the sale.

Interim spousal support was also increased due to a material change in the husband's income.

The applicant brought a motion to change parenting time, which resulted in the children residing primarily with him.

In these supplementary reasons, the court determined whether the respondent's parenting time met the 40% threshold under section 9 of the Federal Child Support Guidelines to justify a set-off of child support.

The court applied an hourly calculation and found the respondent's time fell short of the required 3,504 hours per year.

Consequently, the respondent was ordered to pay full table child support.

The Estate of Lois Jean Davey, administered by Geoffrey Craig, brought an application seeking a declaration of beneficial interest in a property owned by Geoffrey and Isabel Craig (his separated wife) based on a constructive trust, related to an in-law suite built by the deceased.

Isabel Craig sought dismissal under Rule 2.1.01(1) of the Rules of Civil Procedure.

The court found the application frivolous and vexatious, dismissing it because the deceased's will explicitly stated the addition became Geoffrey's sole property and the estate had no claim.

The court held that the application was an improper attempt to bring a matrimonial claim in a different forum and was estopped by the clear terms of the will.

The applicant father brought a motion to change the nesting arrangement for the parties' two children, seeking primary residence with him.

The respondent mother sought primary residence with her.

The court determined that a material change of circumstances had occurred, necessitating a fresh inquiry into the children's best interests under the framework of *Gordon v. Goertz*.

The court considered the children's views, as reported by the Office of the Children's Lawyer, but found them to be ambivalent and not well-informed, thus placing little weight on them.

Emphasizing the importance of stability and minimizing disruption, the court found it was in the children's best interests to remain living with their father in Ottawa, as they had always done.

The previous Divorce Order was varied to reflect the father as having primary residence, with the mother having parenting time three weekends out of four during the school year and shared holidays.

Child support and costs were reserved for further submissions.

The husband appealed the trial judge's equalization payment and spousal support orders, arguing errors in determining the matrimonial home, denying a tax liability deduction, and calculating support.

The wife cross-appealed the denial of pre-judgment interest, indexing, security for support, and compensatory support, as well as the treatment of mortgage payments on excluded property.

The Court of Appeal dismissed both the appeal and the cross-appeal, finding no errors in the trial judge's factual findings or exercise of discretion, though it amended a review clause on consent.

Following a family law motion concerning custody, child support, and spousal support, the parties were unable to agree on costs.

The court applied Rules 18 and 24 of the Family Law Rules, noting that success on the motion was divided but the respondent was slightly more successful.

The court considered settlement offers, expert report expenses related to income determination, and the reasonableness of legal fees.

The court held that the applicant should bear the full cost of the respondent’s expert report but discounted some legal fees due to duplication caused by a change of counsel.

Costs were fixed with partial indemnity legal fees and disbursements included.

The applicant brought a motion to change seeking retroactive variation of child support, payment of section 7 expenses, termination of spousal support, and changes to custody and access including a week‑on/week‑off regime and decision‑making authority over daycare and education.

The respondent brought a cross‑motion seeking sole custody or, alternatively, final decision‑making authority over daycare and education, variation of child support, and clarification of section 7 expense contributions.

The court determined that the applicant did not meet the 40% threshold required for a shared custody set‑off under s. 9 of the Federal Child Support Guidelines and ordered table child support payable by the applicant.

The court accepted the respondent’s expert accounting evidence regarding income and rejected the applicant’s expert report as unreliable.

Joint custody and the existing parenting schedule were maintained, with after‑school care to occur at home with a nanny.

In a family law trial, the court determined whether the parties had a valid Florida marriage where the respondent used an alias and whether that marriage was valid in Ontario under s. 31 of the Marriage Act.

Applying authorities on fraudulent misrepresentation in marriage formalities, the court held the misrepresentation did not invalidate the marriage because both parties intended to marry each other and understood each other’s identity.

The court granted sole custody to the applicant, ordered conditional access, and made child and spousal support orders after imputing $35,000 annual income to the respondent for inadequate disclosure and intentional underemployment findings.

The court denied both restraining-order requests and awarded partial-indemnity costs to the applicant.