Family and Matrimonial Law - SCJ

The applicant, Marian Elizabeth Breukelman, sought costs on a partial indemnity basis after successfully defending a motion by the respondent, Dario Antonio Miret, to remove her lawyers for an alleged conflict of interest.

The court, M.D. Faieta J., assessed the costs considering factors such as the applicant's success, the complexity and importance of the issues, the respondent's failure to make an offer to settle, and the reasonableness of the time claimed by multiple counsel.

The court found the motion complex and important, and that the respondent failed to meet his obligation to settle.

While acknowledging the use of multiple counsel, the court found the total time claimed excessive and adjusted the costs downward.

The respondent father brought an urgent motion seeking an order that the parties' two children attend their choice of schools in Ottawa, within the catchment area of the matrimonial home.

The applicant mother opposed, requesting the children attend school in Gatineau, Quebec, where she had relocated, citing financial strain and travel costs.

Applying the best interests of the child framework, the court found that history of care, stability, and the children's expressed preferences strongly favoured remaining in their current Ottawa school catchment area.

The father's motion was granted.

The parties cohabited for five and a half years.

Following their separation, the applicant sought a 50% share of the net proceeds from the sale of a property solely owned by the respondent, claiming a resulting or constructive trust, and unjust enrichment.

The respondent sought a 30/70 division in her favour and transitional spousal support.

The court found that the parties' initial and ongoing contributions were unequal, with the respondent contributing significantly more.

The court ordered the net proceeds divided 30% to the applicant and 70% to the respondent.

The respondent's claim for spousal support was dismissed as she failed to establish need or compensatory entitlement.

The applicant payor brought a motion to change spousal support following his retirement, seeking to terminate support.

The respondent opposed the motion, citing extreme hardship.

The court found that the motion could not proceed on the untested affidavit materials, as there were significant factual and credibility disputes, and neither party had properly advanced their case.

The motion was adjourned to allow for cross-examinations and the preparation of an agreed statement of facts.

The mother brought an urgent motion to permit the parties' six-year-old child to attend a specialized speech and language program at a different school for grade one.

The father opposed the motion, arguing the child's primary issue was hearing, not speech, and that changing schools would be disruptive.

The court found the mother's proposal was logical, child-focused, and supported by professional recommendations.

The court granted the motion, noting that the father's opposition reflected an unfortunate competitiveness that undermined the spirit of their shared parenting arrangement.

On cross-motions to change a final family order, the court addressed retroactive and ongoing child support, imputation of income, and section 7 expenses after one child left the mother's residence and began living with the father.

Applying the retroactive support framework from D.B.S. as refined by Michel v. Graydon, the court dismissed the claim for increased support before October 1, 2019, finding that although the father failed to prove timely annual disclosure, his substantial child-focused payments and the parties' informal financial arrangements made earlier retroactivity unfair.

Applying the Drygala framework, the court found the mother intentionally unemployed, rejected her health and childcare explanations, and imputed income of $30,000 effective September 1, 2020.

The court also applied the Titova framework and allowed sharing of dental and orthodontic expenses while rejecting other loosely supported claims.

The applicant father brought a motion seeking the immediate return of his three children from Newfoundland to Ontario.

The respondent mother and children had travelled to Newfoundland for Christmas but did not return as agreed, citing the children's fear of the worsening COVID-19 situation in Ontario.

The court found that the 13-year-old child's expressed 'terror' about returning required therapeutic intervention rather than an immediate legal order.

The motion was adjourned, and the parents were ordered to arrange immediate counselling for the child and to communicate daily.

The respondent brought a motion seeking full authority to conduct the sale of the jointly owned matrimonial home, alleging the applicant was unreasonably stalling the process.

The court declined to grant the respondent sole control over the sale, noting a lack of independent professional evidence regarding the appropriate listing price.

However, recognizing the high-conflict nature of the case, the court imposed strict terms and timelines for obtaining appraisals, listing the property, and responding to offers.

The court also permitted the respondent to proceed with an access motion separately from the support issues.

No costs were awarded due to divided success and the unreasonable behaviour of both parties.

The Family Responsibility Office brought a motion for a warrant of committal against the respondent for failing to pay support arrears.

The self-represented respondent was advised by Legal Aid that duty counsel would not attend the committal hearing with him due to internal policy.

The court found it grossly unfair for the respondent to face potential incarceration without legal representation, adjourned the matter, and requested Legal Aid Ontario to review its policy and explain its rationale at the next appearance.

The matter was scheduled for a three-day trial regarding an application to terminate or reduce spousal support.

The parties failed to attend, and their counsel requested an adjournment due to a miscommunication by an agent and a lack of a settlement conference.

The court refused the adjournment, noting the prejudice to the judicial system and other litigants.

Counsel subsequently presented minutes of settlement withdrawing the claims on a without prejudice basis.

The court rejected this approach to prevent misuse of judicial resources and dismissed the claims in the Application and Answer, requiring leave of the court for any future proceedings.

Following a complex motion where the applicant was entirely successful in imputing income and obtaining child and spousal support, the court determined the issue of costs.

The applicant sought full recovery of $94,373.45, arguing the respondent acted in bad faith by failing to provide adequate financial disclosure.

The court found the respondent's defiant, uninformative, and misleading approach to disclosure constituted bad faith under Rule 24(8) of the Family Law Rules.

However, noting the applicant's bill of costs lacked sufficient particularity and applying principles of proportionality, the court fixed costs at $39,550, with $31,640 enforceable by the Family Responsibility Office.

The parties, who share joint custody and equal parenting time of their three-year-old child, brought a last-minute motion to determine which school the child should attend for Junior Kindergarten.

The applicant mother proposed a school in Waterdown, while the respondent father proposed a school in Ancaster.

The court found both proposals had merit but ultimately ordered the child to be enrolled in the respondent's school district, citing the greater long-term stability of the respondent's residential and employment situation.

No costs were awarded.

Following a 34-year marriage, the applicant sought ongoing and retroactive spousal support.

The respondent conceded entitlement but argued income should be imputed to the applicant, who worked part-time at a grocery store.

The court declined to impute income, finding the applicant was making reasonable efforts given her limited work history and significant health issues, including epilepsy and post-concussive syndrome.

The court ordered ongoing spousal support of $1,750 per month and retroactive support commencing from the date the matrimonial home was sold.

Following a six-day trial regarding custody and school choice, the successful applicant mother sought full indemnity costs of $54,001.06.

The court found that the applicant's offers to settle did not trigger full recovery costs under Rule 18(14) because they included predetermined costs penalties.

The court also found that while the self-represented respondent's behaviour was unreasonable, it did not meet the high threshold for bad faith under Rule 24(8).

Balancing success, unreasonable behaviour, and proportionality, the court ordered the respondent to pay costs fixed at $32,000.

In a status review trial under Part III of the Child and Family Services Act, the court considered whether two young children should be returned to their mother under supervision or made Crown wards.

The evidence showed longstanding alcohol abuse, repeated domestic violence, mental health instability, housing instability, non-compliance with court orders, and inconsistent access causing emotional harm to the children, despite some positive visits and an emotional bond.

Applying the child-centred best interests analysis and the statutory time limits on society wardship, the court held that no less intrusive alternative would adequately protect the children and provide permanence.

The court also held that the mother did not satisfy the conjunctive test for access to Crown wards and rejected a submission that Gladue principles altered the CFSA analysis where the relevant inquiry was the children’s status.

The applicant brought a motion to change child and spousal support, which was ultimately settled by consent after three years of litigation.

The respondent sought full indemnity costs, arguing the applicant acted in bad faith by ignoring previous court orders, lying about his employment termination, and filing a baseless Law Society complaint against her counsel.

The court found the applicant acted in bad faith and ordered him to pay $70,000 in costs, with 80% enforceable by the Family Responsibility Office.

The parties separated in 2013 and have one child together.

The mother sought sole custody and limited access, citing the father's criminal convictions for harassment and threatening.

The father sought joint custody and an alternate week shared parenting schedule.

The court found that both parents were capable and loved the child, and that the father's criminal behavior, while serious, did not preclude joint custody.

The court noted the mother's attempts to limit the father's access and her inappropriate discussions with the child.

The court ordered joint custody and an equal shared parenting schedule, along with retroactive and ongoing child support based on the Child Support Guidelines.

The Children's Aid Society apprehended a 14-year-old boy who had been home-schooled and socially isolated his entire life.

The Society sought a temporary order to keep the child in care pending a psychological assessment, citing severe concerns regarding the mother's mental health, including bizarre delusions and paranoia, and the parents' complete refusal to cooperate with the Society or the Office of the Children's Lawyer.

The parents sought the child's return.

The court found reasonable grounds to believe the child was at risk of emotional harm and could not be protected by a supervision order, ordering the child to remain in the Society's care.

The applicant father brought a motion to change to retroactively reduce his child support obligations, arguing his income decreased significantly after he lost his job due to incarceration for repeated driving and criminal offences.

The respondent mother brought a cross-motion for retroactive section 7 extraordinary expenses.

The court dismissed the father's motion, finding he was intentionally under-employed as his job loss was the direct result of his own reckless and illegal conduct, and imputed his income at his previous earning level.

The mother's cross-motion was also dismissed due to her failure to consult the father or provide timely disclosure of the expenses as required by their separation agreement.

The Children's Aid Society brought a motion for summary judgment seeking Crown wardship with no access for a nine-month-old child who had been in care since birth.

The parents, who had a history of domestic violence, housing instability, and substance abuse, failed to file responding materials.

The court found no genuine issue for trial, determining the child was in need of protection and that the parents could not provide a safe and stable environment.

Crown wardship was ordered with no access, as the parents failed to demonstrate that access would be beneficial and meaningful or that it would not impair future adoption opportunities.