Shana Maiato

This decision concerns the costs of several disclosure motions in a family law proceeding.

The applicant, Johnny Vinken, sought full indemnity costs for three motions arising from the respondent’s, Heather Anne Earle’s, failure to provide complete financial disclosure.

The court found that while the applicant did not succeed on every request, he was successful in the substance of the motions, which was to secure proper disclosure.

The court awarded costs on a partial indemnity basis, totaling $16,401.51, to be paid at the end of the litigation, regardless of the ultimate outcome.

The applicant, Johnny Vinken, brought a motion for relief due to the respondent, Heather Anne Earle, failing to provide required financial disclosure and answers to undertakings in the context of a motion to change child support and s. 7 expenses for their now-adult children.

The court reviewed the history of disclosure orders and compliance, and ordered the respondent to provide outstanding documents and information within 30 days.

The court declined to strike the respondent’s pleadings, preferring resolution on the merits, and extended the time to set the matter down for trial by nine months.

The parties were encouraged to resolve costs, with a timetable for written submissions if necessary.

The respondent father brought a motion to stay a 2011 interim child and spousal support order and its enforcement, after unilaterally ceasing payments for several years.

The applicant mother brought a cross-motion for financial disclosure, retroactive child support, and a preservation order.

The court dismissed the father's motion, finding he failed to meet the heavy onus to vary an interim order, as he did not demonstrate a strong prima facie case, hardship, urgency, or clean hands.

The court granted the mother's requests, ordering retroactive child support from 2017 based on the father's increased income, and continued a preservation order against the father's RRSP.

The applicant father brought an urgent motion for interim parenting time with his two young children.

The respondent mother opposed the motion, citing concerns about the children's exposure to family violence and the father's erratic behaviour.

The court applied the newly amended Divorce Act, emphasizing a human rights-based approach and the impact of family violence on the children's best interests.

The court ordered a slight increase in the father's parenting time, largely adopting the mother's proposed schedule with strict conditions, but allowing contact with the children's half-sibling.

The applicant sought a divorce, and the respondent counterclaimed to set aside their separation agreement, arguing she signed it under duress, without independent legal advice, without understanding it, and without proper financial disclosure.

The court found that the respondent, who had been the bookkeeper for the applicant's business, fully understood the agreement and the parties' financial situation.

The court held there was no duress, no material non-disclosure, and no unforeseen circumstances that would render the spousal support waiver unconscionable.

The respondent's claims were dismissed, and the separation agreement was upheld.

The applicant father brought a motion for partition and sale of the matrimonial home, while the respondent mother brought a cross-motion for exclusive possession and interim child support (the latter adjourned by consent).

The court granted the applicant's motion for partition and sale, finding no basis for the respondent's claim for exclusive possession.

The court considered the financial positions of both parties, the history of alleged violence, and the best interests of the children, concluding that the respondent failed to provide sufficient evidence to deny the partition and sale, particularly regarding the impact on her home daycare business or the children's schooling.

Conditions were imposed on the sale to minimize disruption.

An appeal from a motion judge's order staying custody proceedings in Ontario and ordering the return of three adolescent children to Nigeria, their place of habitual residence.

The motion judge found that an Ontario court lacked jurisdiction under section 22 of the Children's Law Reform Act because the children were habitually resident in Nigeria and a custody application was pending there.

The Court of Appeal allowed the appeal, finding that although section 22 did not provide jurisdiction, section 23 of the CLRA permitted Ontario to exercise jurisdiction because the children would suffer serious harm if returned to Nigeria.

The serious harm was based primarily on evidence of physical discipline with objects by the father and the children's mature objections to returning.

The court granted interim custody to the mother with generous access to the father pending a full hearing on the merits.

A costs endorsement following motions heard on December 21, 2016, in a family law matter.

The applicant mother sought to vary an existing access order to provide for supervised access and specific telephone access terms.

The respondent father sought to expand his access and remove conditions.

The court granted the applicant's relief in part and denied the respondent's motion entirely.

The applicant sought costs of $4,977.67 on a partial recovery basis, while the respondent agreed costs should be awarded but proposed $1,500.00.

The court awarded costs of $3,700.00 inclusive of disbursements and HST, payable in three instalments over time, considering the respondent's financial circumstances and the reasonableness of the time and expenses incurred.

The applicant mother sought to implement recommendations from an Office of the Children's Lawyer (OCL) report, including sole custody and supervised access for the respondent father.

The respondent father sought to expand his unsupervised access and remove conditions from an existing temporary order.

The court found exceptional circumstances existed warranting implementation of supervised access and restricted telephone contact recommendations, but denied the mother's request for sole custody and other non-access relief.

The father's motion for expanded unsupervised access was also denied.

The applicant father brought an urgent motion for custody of a five-month-old infant child born to unmarried parents.

The respondent mother and maternal grandmother also brought competing custody applications.

The court consolidated the proceedings in Brampton, finding that the child was ordinarily resident there.

The court set aside prior without prejudice orders and established a temporary parenting plan providing the father with substantial access to the child, contingent upon the mother residing with the maternal grandmother and receiving treatment for mental health concerns.

The court emphasized the presumption favoring parental custody while recognizing the need for immediate protection of the child during the mother's mental health crisis.

The applicant brought a motion for temporary child support for three adult children attending post-secondary education, a preservation order, and a pension valuation.

The respondent brought a counter-motion to dismiss the applicant's equalization claim on the basis that the six-year limitation period had expired.

The court found that the adult children, despite delayed educational paths due to learning disabilities and family issues, remained children of the marriage and ordered temporary section 7 support.

The court dismissed the respondent's counter-motion, extending the limitation period for equalization because the applicant's delay was in good faith and the respondent suffered no substantial prejudice.

A preservation order over the respondent's RRSPs was granted due to a strong risk of asset depletion, but the request for a pension valuation was dismissed.