Family and Matrimonial Law - SCJ

The applicant brought a motion for an order regarding the sale of the parties' matrimonial home.

The respondent agreed to the sale but disputed the choice of real estate agent and the request for proceeds to be held in trust.

The court ordered the sale of the matrimonial home with the applicant's preferred real estate agent, Carol Traversy, citing her neutrality and the prior process for selecting agents for other properties.

The court also ordered that the net proceeds of the sale be held in trust pending a final order or agreement, due to the complex financial affairs of the parties and the respondent's lack of timely corporate financial disclosure, which raised concerns about potential equalization payments and child support arrears.

The Applicant sought to have a separation agreement made a final order, retroactive application of the order, findings of breach against the Respondent, and financial penalties.

The Respondent filed a cross-motion for costs.

The court granted the request to make the separation agreement a final order but denied retroactive application.

It found the Respondent breached communication and ancillary terms of the agreement but declined to impose financial penalties under Rule 1(8) as the agreement was not yet a court order.

The court also denied the Respondent's request for costs for a previous ex-parte motion.

Further submissions on a temporary enforcement order and costs for the current motion were directed.

The Applicant sought partial summary judgment for retroactive and prospective section 7 expenses for three children and a divorce order.

The court dismissed the motion, finding it inappropriate for partial summary judgment due to outstanding issues (parenting time, child support, equalization), the risk of inconsistent judicial determinations regarding income and expenses, and the lack of efficiency or cost savings.

The court emphasized that all issues raised were triable and should be reserved for the trial judge.

The respondent law firm brought a motion for security for costs against the applicant, citing the applicant's non-residency and the alleged frivolous and vexatious nature of the application, coupled with insufficient assets.

The court dismissed the motion, finding that an order for security for costs would not be just.

The court emphasized the respondent's unreasonable delay in bringing the motion and the protective purpose of the Solicitors Act, which facilitates client assessment of solicitor accounts.

The court also found merit in the applicant's assessment claim.

This was a family law costs endorsement following a two-week trial concerning equalization, valuation disputes, loans from family members, spousal support, and post-separation adjustments.

The court found the applicant was predominantly and substantially successful and held that the respondent’s disclosure failures, document dumps, unsupported allegations, unreasonable positions, and inefficient trial conduct materially increased the costs of the litigation.

Applying Rules 18 and 24 of the Family Law Rules, the court concluded that the applicant had made reasonable offers to settle which she beat on significant issues, while the respondent had not.

Costs were fixed at $190,000, payable forthwith, with enforcement permitted against the respondent’s real property interests and post-judgment interest ordered.

The Applicant Father sought the sale of the matrimonial home and an investment property due to significant financial burden.

The Respondent Mother opposed the sale of the matrimonial home and brought a cross-motion for child and spousal support.

The court ordered the immediate sale of both properties, finding that the financial situation necessitated the sales and that the Mother's opposition was not based on oppressive conduct or substantial prejudice.

The Mother's support motion was adjourned until after the property sales.

The applicant mother brought two motions: to suspend the father's parenting time pending a psychiatric assessment and to find him in contempt of court.

The motions arose from an incident where the mother intervened to prevent the father from exercising his court-ordered parenting time at the child's school graduation event, leading to a verbal altercation.

The court found that the mother had breached a prior court order by denying the father parenting time and that her allegations of the father's unfitness, based on his political views and the incident, were unsubstantiated.

The court dismissed both of the mother's motions, maintained the existing parenting schedule, clarified summer parenting time, and ordered the mother to pay costs to the self-represented father.

The decision emphasized the importance of parental cooperation and the child's best interests over parental conflict.

This endorsement addresses the admissibility of extensive hearsay evidence, particularly statements attributed to children, presented via affidavit in a family law trial.

The court reiterated that while evidentiary rules may be flexible for children's best interests, the hearsay rule is not relaxed for trial affidavits.

It emphasized the "necessity and reliability" test for admitting children's hearsay, finding that the impugned statements lacked sufficient procedural and substantive reliability, especially given the children's vulnerabilities and the absence of independent corroboration.

The court largely disallowed the admission of the contested hearsay evidence.

Following a lengthy, high-conflict parenting and support trial between self-represented former spouses, the court held that the mother should have sole decision-making responsibility and primary residence of the children, with the father exercising alternate weekend parenting time.

Applying the Divorce Act best-interests framework, the court found that the father was the principal source of coercive, controlling, and toxic post-separation behaviour, and that the younger child’s anorexia and vulnerability required clearer boundaries and reduced parental conflict.

The court also recalculated retroactive child support from 2016, fixed ongoing support, apportioned extraordinary dance and activity expenses, and ordered that proceeds of a jointly owned rental property sold contrary to the separation agreement be paid to the mother in trust for the children.

A request for restraining orders was denied because the legal test for reasonable grounds to fear for safety was not met, although the mother was otherwise substantially successful.

In an interprovincial support variation proceeding, the applicant sought termination of child support for three adult children and termination of spousal support under a 2008 Manitoba order, while the respondent sought continuing support and retroactive increases.

The court found multiple material changes in circumstances, including the parties’ changed incomes, the children’s adulthood, one adult child’s receipt of disability benefits, and changed living and educational arrangements.

Applying the law governing adult-child support, disability-based dependency, and retroactive support, the court held that ongoing child support was no longer payable for two adult children, and for the youngest only during a brief period of full-time post-secondary studies while residing with the respondent.

The court accepted retroactive child support recalculation in principle because of nondisclosure, but concluded no retroactive amount was payable and no credit should be given for alleged overpayments of special expenses.

Spousal support was terminated prospectively as of December 31, 2022, no retroactive spousal adjustment was ordered, and the restraining order claim was dismissed.

The applicant mother brought a motion seeking child support, imputation of income, and orders regarding the sale proceeds and carrying costs of a property.

The court imputed an annual income of $100,000 to the respondent father due to his failure to provide adequate financial disclosure and evidence of undisclosed income from his music career and frequent travel.

The court ordered retroactive child support, required the respondent to pay 50% of the property's carrying costs, and directed that the applicant receive 50% of the net sale proceeds with the remainder held in trust.

In a family trial, the court decided an evidentiary application concerning a young child's out-of-court statements alleging physical discipline and expressing discomfort with the applicant's conduct.

Applying the principled hearsay approach from Khan, the court held necessity was established and found threshold reliability for certain statements based on spontaneity, surrounding circumstances, and corroboration from third-party evidence.

A secretly made audio recording of the child was excluded because its poor quality and the systemic prejudice associated with surreptitious recordings in family litigation outweighed its slight probative value.

The child's statements about being slapped and about disliking kisses because the applicant's mouth was not clean were admitted.

In a high-conflict family law proceeding with a bifurcated trial, the court issued a directions ruling after significant delays by both parties.

The parenting trial had concluded its evidentiary phase but was paused for reunification therapy that never occurred, while the financial trial was repeatedly delayed due to disclosure disputes and lack of preparation.

The court directed the Office of the Children's Lawyer to update its clinical investigation regarding the children.

For the financial issues, the court ordered the parties to exchange updated financial statements and attend a peremptory settlement conference to ensure the matter becomes trial-ready.

The applicant Society brought a motion to vary a temporary care and custody order, seeking to remove the child from the respondent mother's care and place him with his paternal uncle.

The Society alleged that the mother was alienating the child from the respondent father and had fabricated allegations of sexual abuse.

The court found a material change in circumstances and that the child was at risk of emotional harm in the mother's care.

The court ordered the child placed in the temporary care of the paternal uncle, with supervised access for the mother and reunification therapy for the father.

The applicant sought to assess 30 accounts rendered by his former law firm in a family law matter, alleging the firm failed to prepare for trial and demanded an exorbitant additional retainer.

The court found that the applicant, a sophisticated client, had deliberately obstructed trial preparation and orchestrated the breakdown of the solicitor-client relationship to obtain an adjournment.

The court held that no special circumstances existed to justify assessing the accounts and dismissed the application.

The applicant's motion for a sealing order was partially granted to redact identifying information about his children, but otherwise dismissed as the information was already public and solicitor-client privilege was waived by the nature of the allegations.

The applicant wife brought a motion for temporary child and spousal support, interim disbursements, preservation orders, and to add the husband's father and his new company as parties.

The wife alleged the husband was hiding assets and intentionally bankrupting their previously successful business to avoid support obligations.

The husband claimed he and his business were insolvent.

The court found the husband's financial evidence suspicious and his conduct concerning, noting he paid creditors instead of supporting his family.

The court ordered $7,500 monthly in unallocated support, granted leave to add the father and his company as parties, and ordered various financial disclosures and preservation measures, but declined to impute an $800,000 income or order interim disbursements at this stage.

In a divorce application involving complex corporate structures, the applicant husband brought an interim motion seeking to compel the respondent wife to transfer her shares in several closely held corporations to him, or alternatively, to wind up the companies.

He also sought a restraining order.

The wife sought a sealing order for a video exhibit, and the husband sought to consolidate the wife's wrongful dismissal action with the family proceeding.

The court dismissed the husband's requests for share transfers and winding up, finding no jurisdiction under the Family Law Act prior to equalization and no oppression under the Business Corporations Act.

The restraining order was also dismissed.

The court granted the wife's request for a sealing order and the husband's request to transfer and hear the wrongful dismissal action together with the family proceeding.

The applicant mother brought a motion to stay two orders granting the respondent father overnight access and police enforcement of that access, pending her appeal.

The court found the mother did not meet the test for a stay, noting her history of non-compliance with court orders and lack of a serious issue to be tried.

However, acting in the child's best interests, the court ordered a short transitional access schedule culminating in overnight access, while maintaining the police enforcement order.

Following a motion for temporary child and spousal support, the court addressed the outstanding issue of costs.

The moving party had been successful on the earlier motion, which determined the responding party’s income and ordered support accordingly.

The court found that settlement had been hindered by the responding party’s lack of disclosure.

While the successful party sought over $51,000 in costs on a full indemnity basis, the court concluded that full indemnity was not justified and fixed costs at $25,000 inclusive of disbursements and GST.

Costs decision following a family law motion previously decided by the court.

The parties reached an agreement regarding costs after the motion ruling was released.

The court endorsed the agreement, ordering the respondent to pay $2,500 in costs to the applicant, inclusive, to be satisfied by way of set‑off against future spousal support.

The court also clarified the total amount to be redirected by the Family Responsibility Office in accordance with the earlier endorsement.