Family and Matrimonial Law - SCJ

The applicant was successful in obtaining an order for the sale of property owned jointly with the respondent.

The applicant sought costs on a full indemnity basis of $34,377.

The court noted the motion was not complex, the respondent did not deliver responding materials, and there was significant duplication of effort in the applicant's dockets.

The court fixed the costs of the motion at $7,500 inclusive of disbursements and HST.

This case involved a dispute between ex-spouses, Kathie Debren (Plaintiff) and Kevin Debren (Defendant), primarily concerning the ownership of a cottage property.

Both parties had a history of fraudulent financial conduct, including sham divorces and bankruptcies with undisclosed assets.

The court found both parties lacked credibility, except for their son, Montana Debren (Third Party), who was drawn into the litigation.

Kevin Debren's counterclaim for beneficial ownership or compensation for property improvements was dismissed due to a lack of credible evidence and the vesting of pre-discharge claims in his trustee in bankruptcy.

Kathie Debren was declared entitled to possession of the cottage, subject to conditions imposed by her trustee in bankruptcy to ensure creditor payment.

Kevin Debren's third-party claim against Montana Debren was also dismissed.

The parties jointly sought an uncontested divorce.

A previous endorsement by Justice Raikes had noted the absence of a precise separation date and the requirement for one year of separation.

The applicant filed a supplementary affidavit indicating a separation date of February 1, 2022.

However, the court found inconsistencies between this affidavit and earlier application materials, which suggested a separation in April 2022, and noted an apparent alteration of the date in the supplementary affidavit.

Due to concerns that the evidence might have been tailored to expedite the divorce, the court declined to grant the order immediately.

The application was adjourned until May 1, 2023, to ensure the parties had been separated for more than one year based on all information provided.

The applicant father sought interim custody and shared residency of the child, Talia, following the breakdown of his common-law relationship with the respondent mother.

The court assessed the parenting abilities of both parents, noting concerns with each, including the applicant's prior conviction for dishonesty and the respondent's alleged violence and failure to facilitate contact.

Despite these issues, the court found that both parents had been extensively involved in the child's life.

The motion was heard during the COVID-19 outbreak and deemed urgent due to an allegation of wrongful removal/retention of a child.

The court issued an endorsement on costs following the dismissal of the respondent father's urgent motion.

The applicant mother was entirely successful on the motion and sought costs on a full recovery basis.

The court noted the parties' failure to comply with court directions regarding submissions and the father's non-compliance with previous orders concerning the matrimonial home.

Considering the mother's more favourable Offer to Settle and the father's unduly lengthy and irrelevant affidavits, the court awarded the mother $15,000 in costs, inclusive of disbursements and HST, payable within 30 days.

The applicant mother brought an urgent motion for interim access to her child, who resided primarily with the respondent paternal grandmother.

The grandmother had suspended access due to the COVID-19 public health emergency.

The court found no evidence that children are particularly vulnerable to the virus and noted that access should continue as ordered provided emergency orders are followed.

The court ordered that parenting time resume in accordance with the parties' prior parenting agreement.

The parties separated and the applicant father withheld the child from the respondent mother, citing concerns about her mental health.

The father sought an order restricting the mother to supervised access.

The mother provided medical evidence showing she was actively engaged in treatment for depression and anxiety and that her condition had significantly improved.

The court found it was in the child's best interests to be in an equal timesharing arrangement on a temporary basis, noting the mother's positive steps in addressing her mental health and her historical role as a primary caregiver.

The applicant mother brought an urgent motion to suspend or vary the respondent father's access to their three-and-a-half-year-old child due to concerns about COVID-19 risks, specifically the father's use of public transit and lack of forthrightness about household health.

The court found a material change in circumstances and ordered a temporary variation of the access schedule.

The father's mid-week access was suspended, and his alternate weekend access was extended from Friday at noon to Sunday at 6 pm, with transportation to be shared equally using private vehicles.

The applicant Society brought an urgent motion during the COVID-19 emergency period seeking an order regarding the safety of two children.

The mother's partner was being investigated for potential child abuse after concerning pictures were found on his computer.

The parents had agreed to a safety plan where the partner resided outside the home and had supervised access.

The triage judge dismissed the motion, finding no current urgency as the parents were complying with the safety plan and had not indicated any intention to revoke their consent.

This endorsement addresses multiple motions in a family law proceeding.

The court reviewed the continuation of a temporary spousal support order for a personal care assistant (PCA) and decided on two Form 14B motions for leave to bring further motions.

The Respondent sought leave to compel production of the Applicant's entire medical file, which was denied due to disproportionality and lack of necessity.

The Applicant sought leave for several reliefs, including striking affidavits, a restraining order, and interim disbursements.

The court dismissed most of the Applicant's requests for leave but granted leave for a motion for interim costs, recognizing the complexity of the Respondent's financial affairs and the need to "level the playing field." The court also clarified its ongoing case management role.

The applicant brought a motion seeking leave to amend his application, orders compelling the respondent to answer refusals and undertakings, to strike certain paragraphs from the respondent's affidavit, and to provide medical information for the parties' child.

The applicant also sought to expand his access to the child to include one overnight per month.

The respondent consented to the application amendment and some production.

The court granted the applicant's requests for expanded overnight access, full medical information for the child, and struck inflammatory paragraphs from the respondent's affidavit.

Costs were awarded to the applicant.

The trial addressed the quantum of spousal support payable by the respondent to the applicant following a long marriage and the applicant's severe medical disability.

The court applied a non-compensatory model of need, considering the applicant's Canada Pension Plan disability benefits and the respondent's employment income.

A central issue was the treatment of Manulife insurance benefits covering 95% of the applicant's long-term care costs.

The court decided to include these non-taxable insurance payments in the respondent's income for Spousal Support Advisory Guidelines calculations, while also accounting for the respondent's insurance premium costs.

Spousal support was awarded at the lower end of the Guidelines range, and specific orders were made for the distribution of past insurance payouts and the ongoing management of benefits.

Retroactive spousal support for the period the applicant was hospitalized was denied.

This trial decision addresses the equalization of net family property, spousal support, and s. 7 child support expenses following a 20-year marriage.

Key disputes included the attribution of diamond rings and a joint bank account, the existence of a debt to the applicant's sister for a California property, the respondent's personal debts, and the valuation of a Honda and RRSPs at the date of marriage.

The court imputed income for both parties for support purposes and denied the respondent's request for a right of first refusal on a jointly-owned property.

The applicant brought a motion seeking an order for DNA testing to determine the paternity of a child.

The respondent opposed the motion and sought dismissal or, alternatively, disclosure of the applicant’s school and criminal records and an adjournment pending disclosure.

Applying ss. 4 and 10 of the Children’s Law Reform Act, the court held that requests for paternity testing should generally be granted unless the test would harm the child or the request is made in bad faith.

The court found no evidence of bad faith and held it was in the child’s best interests to determine parentage.

The motion for DNA testing was granted with conditions requiring the applicant to pay for the testing and to provide certain disclosure if paternity was confirmed.

An uncontested divorce trial proceeded where the respondent failed to appear despite being served.

The parties had previously entered into a separation agreement requiring spousal support and child support, but the respondent paid nothing and later swore an affidavit agreeing to amended child support terms which he also failed to honour.

The court granted the divorce, ordered arrears and ongoing child support, and confirmed custody of the child with the applicant.

The court also directed the issuance of a support deduction order and ordered costs against the respondent.

The decision commented critically on the respondent’s persistent non‑payment and failure to engage with the proceedings.

The applicant brought a motion seeking retroactive child support, ongoing child support, and contribution to special or extraordinary expenses under s. 7 of the Federal Child Support Guidelines.

The court calculated arrears based on the respondent’s actual income from 2009–2011 and adjustments required by updated Child Support Guidelines tables, resulting in retroactive support owing.

The court also reviewed a schedule of claimed s. 7 expenses and determined which qualified as special or extraordinary expenses, rejecting items such as uniforms and discretionary travel.

The respondent was ordered to pay a share of qualifying past expenses and a proportion of future expenses.

Additional requests relating to mandatory parenting time and compelled counselling were found to be outside the court’s jurisdiction.

The respondent sought leave to appeal temporary family law orders requiring payment of child support, spousal support, and costs, and requested a stay pending appeal.

The challenge focused on the motion judge’s imputation of income that included legal fees paid by the respondent’s father as part of the respondent’s income for support purposes.

The court held there was good reason to doubt the correctness of including third‑party payment of legal fees in the imputation of income and that the issue was of sufficient importance to warrant appellate review.

Leave to appeal was granted on that narrow issue.

A partial stay of the support and costs orders was also granted pending appeal, with reduced interim child and spousal support amounts based only on other financial benefits received from the respondent’s father.

Following a motion concerning the appropriate income to be used in calculating child support, both parties sought costs.

The dispute arose from the payor’s claim that his present income had decreased and should be used instead of prior income, which would have produced significant arrears.

The court accepted the payor’s position on a temporary basis pending a further review of child support.

Although the issue was important and the argument somewhat novel, the payor was successful on the interim motion.

The court therefore awarded the successful party partial costs reflecting the short duration and limited scope of the motion.

Following a family law trial concerning parenting-related issues, the court was required to determine costs.

The respondent sought costs after succeeding on two of three issues, while the applicant argued each party should bear their own costs.

The court found that success was divided between the parties and that both had acted unreasonably at times during the litigation.

Given the mixed outcome and equal importance of the issues, the court ordered that each party bear their own costs and that no costs be awarded for the costs submissions.

In a post‑separation parenting dispute, the moving party sought an order requiring a psychologist to file and disclose a parenting assessment report prepared during earlier proceedings.

The court held that the report had not been formally ordered under s. 30 of the Children’s Law Reform Act and, in any event, the underlying application had already been resolved by a final parenting order.

As a result, the court lacked jurisdiction to compel production of the report to the parties.

The court further held that even if jurisdiction existed, disclosure to the parents was not shown to be in the children’s best interests.

The motion was dismissed, with the court directing that the report may be provided to professionals involved with the family only upon request and awarding costs against the moving party.