Family and Matrimonial Law - SCJ

In a family law matter arising from the breakdown of a relationship, the respondent sought costs on a partial indemnity basis in the amount of $28,800.00 inclusive of disbursements and HST.

The applicant submitted that each party should bear their own costs, or alternatively, that the respondent should pay costs to the applicant in the amount of $11,603.97 relating solely to the Binding Judicial Dispute Resolution process.

The court found that most outstanding issues were resolved through Minutes of Settlement with divided success between the parties.

The court declined to award costs, finding that it was unable to determine that one party was clearly successful or that one party clearly capitulated to the opposing party's position.

This decision addresses costs following a bifurcated trial where the applicant successfully challenged the validity of her 2017 divorce on grounds of lack of notice and improper date of separation.

While the applicant won this "battle" and beat her offer to settle, the court noted that her success on the date of separation issue (finding parties never lived together, thus separation date was marriage date in 2013) might lead to her equalization claim being barred by a different, six-year limitation period.

The judge fixed the amounts of costs for both parties (applicant on a substantial indemnity basis, respondent on a partial indemnity basis) but ordered them "in the cause," deferring the final award until the ultimate resolution of the main equalization application and the applicability of the second limitation period.

The respondent husband brought an interim motion to stay or reduce his $13,000 monthly spousal support obligation and stay enforcement of arrears pending the hearing of his motion to change.

The husband argued his income had significantly decreased due to selling his business following a cancer diagnosis.

The court dismissed the motion, finding that while the husband established a prima facie material change in circumstances, he failed to demonstrate hardship as he could pay support from his investments, and he came to court with unclean hands due to his deliberate prior non-compliance with the support order.

The applicant brought a motion for temporary child and spousal support.

The respondent argued the applicant was intentionally underemployed and sought to impute her income at $50,000.

The court found the applicant had established a prima facie case for spousal support but agreed she was intentionally underemployed, imputing her income at $30,000.

The respondent's income was determined to be $120,000.

The court ordered set-off child support of $1,257 per month and spousal support of $1,587 per month based on the mid-range of the Spousal Support Advisory Guidelines for a shared parenting arrangement.

The Children's Aid Society brought a motion for summary judgment to place three children with their father under a six-month supervision order, with the mother's access to be supervised at the Society's discretion.

The father consented, and the mother did not actively oppose the motion.

The court applied the test for summary judgment in child protection proceedings, screened the evidence for admissibility (including business records and children's hearsay statements), and found no genuine issue requiring a trial.

The court concluded that the children continued to be in need of protection and that the proposed order was in their best interests.

The applicant sought $23,618.00 from the respondent as a remaining equalization payment, arguing that a prior consent order required the respondent to pay 100% of a loan from her parents.

The court found the consent order clearly stated the respondent was only responsible for 'his share' (50%) of the loan.

Finding no evidence of common mistake, misrepresentation, or fraud to set aside the consent order, the court dismissed the applicant's claim.

The applicant sought spousal support, child support, arrears, and equalization of net family property.

The respondent's request for an adjournment was denied due to a history of delay and non-compliance with court orders.

The court imputed an income of $40,000 per year to the respondent due to his lack of financial disclosure and implausible claimed income.

Orders were made for ongoing child support, retroactive child support, section 7 expenses for post-secondary education, and an equalization payment of $11,850.96 to the applicant from the proceeds of the matrimonial home.

Spousal support was set at $1.00 per month until the child graduates, then increasing to $1,283 per month.

The applicant moved to enforce an access review provision in a separation agreement, seeking to increase his overnight access to the child.

The respondent opposed and brought a cross-motion for dismissal, transfer of the file to Brampton, and a section 30 assessment.

The court granted the applicant's request for increased access, finding that the "review" test, not "material change," applied and that the increase was in the child's best interests.

The court also granted the respondent's request for a section 30 assessment but adjourned the file transfer request.

Costs were awarded to the applicant.

The parties separated after a high-conflict marriage.

The main issues at trial were parenting arrangements, decision-making authority, and equalization of net family property.

The court found that the respondent mother had engaged in marginalizing conduct and attempted to alienate the children from the applicant father.

The court ordered a shared parenting week-about schedule and granted final decision-making authority to the father, subject to a detailed communication protocol.

On equalization, the court found that funds advanced by the mother's parents were a loan, and waived the father's equalization payment due to the mother's non-disclosure and unilateral disposal of household contents.

The mother was ordered to reimburse the father for post-separation adjustments.

The applicant, a former step-parent, brought a contempt motion alleging the biological father failed to comply with a temporary access order granting the applicant access to his former step‑children.

The court reviewed multiple missed or rescheduled visits and the parties’ communications following the order.

Applying the three‑part contempt test, the court held the evidence did not establish beyond a reasonable doubt that the father deliberately and wilfully disobeyed the order.

The court emphasized that contempt in family proceedings is a remedy of last resort and found the applicant should have pursued enforcement or case conference remedies instead.

The contempt motion was dismissed and no costs were awarded.

Following dismissal of a motion to change support due to the responding party’s failure to provide court‑ordered financial disclosure, the court determined costs.

The successful party sought over $14,000 attributable to the motion, relying in part on an alleged offer to settle.

The court declined to apply the automatic cost consequences of the Family Law Rules because the offer was not produced and the arrears calculations were acknowledged to be inaccurate.

While the responding party’s failure to disclose financial information was found to be unreasonable, it did not amount to bad faith.

Applying the principle of reasonableness and considering partial success obtained on some issues, the court fixed costs at $6,500 inclusive of HST and disbursements and ordered the amount enforceable as a support order.

A maternal grandmother brought a motion seeking the appointment of the Office of the Children’s Lawyer to conduct a social work assessment in support of her application for access to three grandchildren.

The parents opposed the request and maintained that they were providing appropriate care and had decided the grandmother should not have access.

The court reviewed the statutory framework under the Children’s Law Reform Act and the Courts of Justice Act, along with appellate authority emphasizing judicial deference to parental decisions absent evidence of harm or parental unfitness.

The court held that ordering an OCL investigation would be intrusive, time‑consuming, and of limited probative value given the young ages of the children and the nature of the dispute.

The requested referral was therefore not in the best interests of the children.

Following a decision on a motion to change concerning child support, the court determined costs under the Family Law Rules.

Although both parties achieved partial success on certain issues, the court found the applicant was substantially more successful because the litigation secured child support arrears and ongoing support for the children.

The court also considered the respondent’s conduct, including unilaterally ceasing child support payments and failing to provide financial disclosure without litigation.

Applying Rule 24 and the principles governing costs in family law proceedings, the court concluded the applicant was entitled to partial indemnity costs.

The respondent was ordered to pay $6,500 in costs.

The respondent brought a motion to set aside an ex parte custody order granting the applicant temporary sole custody of one child and access to another, and to dismiss the proceeding for lack of jurisdiction.

The court held that the applicant had failed to provide full and fair disclosure when obtaining the ex parte order and that the circumstances required by the Family Law Rules for a motion without notice were not established.

The order was therefore set aside.

The court further considered jurisdiction under s. 22 of the Children’s Law Reform Act and found insufficient evidence on the motion record to determine the child’s habitual residence due to conflicting affidavit evidence.

The court ordered a trial of the issue of jurisdiction regarding custody and access.

Following a family law trial, the court determined costs where the applicant had been self-represented.

The applicant sought broader recovery, including reimbursement of legal fees previously paid to counsel and relief related to family debts discharged in the respondent’s bankruptcy.

The court held that costs cannot be used to indirectly redistribute property or circumvent the legal consequences of bankruptcy.

While the applicant achieved a better result than the respondent’s trial offer, recovery for a self‑represented litigant was limited to reasonable disbursements directly related to trial attendance.

The court awarded modest disbursements for purchases, parking, and mileage.

Following earlier proceedings between the parties in a family law matter, the court was asked to determine costs.

The respondent submitted that success in the proceeding was divided between the parties.

The court agreed that neither party achieved clear success.

Applying the principle that costs generally follow the event unless justice requires otherwise, the court held that no party should receive costs.

The applicant father sought the return of four children to Norway under the Hague Convention on the Civil Aspects of International Child Abduction after the respondent mother retained them in Ontario following a purported vacation.

The court found that the father had not consented to a permanent relocation and that the mother altered the travel consent document to facilitate departure from Norway.

The children’s habitual residence was determined to be Trondheim, Norway, and their retention in Ontario constituted wrongful retention under Article 3 of the Hague Convention.

The court rejected the respondent’s reliance on the grave risk exception under Article 13(b), finding insufficient objective evidence that returning the children would expose them to physical or psychological harm.

Ontario lacked jurisdiction to determine custody under the Children’s Law Reform Act.

The court ordered the immediate return of the children to Norway.

The applicant brought an interim motion seeking primary care and control of the parties’ young child, child support based on the respondent’s alleged income of $65,000, reimbursement of daycare expenses, and continuation of extended health coverage.

The parties had been exercising an equal week‑on/week‑off shared parenting arrangement between two communities since separation.

The court held that where a consensual shared parenting arrangement had been functioning for approximately 18 months and both parents were acknowledged to be capable, a compelling reason was required to alter the arrangement on an interim basis.

Finding conflicting evidence and no pressing need for change, the court maintained the existing shared parenting arrangement pending trial.

The court also determined interim child support based on the respondent’s lower current income and ordered proportionate sharing of daycare costs.

In a family law motion to change child support, the applicant sought leave on the eve of trial to amend pleadings, conduct questioning of the respondent before trial, and obtain additional disclosure.

The proceeding had already been set down for trial following a settlement conference.

Applying Rule 48.04 of the Rules of Civil Procedure, adopted through the Family Court Rules, the court held that motions or discovery after a matter is placed on the trial list require leave and will only be granted in exceptional circumstances.

The court found no substantial or unexpected change in circumstances justifying procedural discovery and concluded that the proposed amendment would significantly expand the issues and delay the trial.

Leave was refused and the motion dismissed.

Following a two‑day family law trial involving disputes over income for support purposes, child and spousal support, section 7 expenses, equalization of net family property, and exclusive possession of the matrimonial home, the court addressed the issue of costs.

The respondent was largely successful at trial and had served an Offer to Settle that the court found was at least as favourable to the applicant as the ultimate trial outcome.

Applying the principles governing costs consequences of offers to settle, the court held that the respondent was entitled to partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

However, costs related to the case conference and settlement conference were excluded.

The court fixed total costs payable at $12,500 inclusive of disbursements and HST, payable forthwith.