Shawn Michael James Duguay

Appeal from a trial judgment in a family law matter involving parenting, child support, spousal support, validity of a separation agreement, equalization of net family property, post-separation adjustments, and the sale of matrimonial properties.

The appellant challenged the trial judge's equalization calculation regarding loans from his mother, post-separation adjustments to equalization payments, and the commencement date of spousal support.

The Court of Appeal allowed the appeal in part, granting an additional post-separation credit for inheritance funds deposited to a joint account, while dismissing other grounds of appeal.

The Court of Appeal for Ontario issued a costs endorsement after the appellant, Boshra Mikhail, abandoned his appeal less than two weeks before the scheduled hearing.

The court awarded the respondent, Eman Mikhail, costs of $10,000, inclusive of disbursements and applicable taxes, after considering written submissions from both parties.

The Applicant sought $150,000 in interim costs but was unsuccessful.

The Respondent then sought costs for that unsuccessful motion.

The court exercised its discretion to defer the determination of costs for the motion to the trial judge.

The decision was based on the lack of a final determination of substantive issues, the narrow scope of the interim costs motion, and a concern that an immediate costs order might impair the Applicant's ability to finance and prepare for trial, particularly regarding expert evidence on the Respondent's financial affairs.

The Applicant, Adele Cummings, sought leave to bring a motion to access $140,000 from her anticipated equalization payment to finance her upcoming trial.

The Respondent, Stephen Horwitz, opposed, arguing that leave should only be granted in exceptional circumstances after a settlement conference.

The court granted leave, finding that the Applicant's request constituted an exceptional circumstance due to her limited earning capacity, significant litigation costs, and the impact of the trial on her future financial security, emphasizing the importance of access to justice.

The Applicant, Karen Clark, sought full-recovery costs after successfully obtaining a valuation of the Respondent's business.

The Respondent, Corey Clark, argued for reduced costs due to alleged unreasonable conduct by the Applicant's prior counsel and unreasonable offers to settle.

The court found the Applicant was presumptively entitled to costs, her offers to settle were reasonable and more favorable than the outcome, and the Respondent's delayed disclosure of expert reports constituted unreasonable conduct, though not bad faith.

The court awarded the Applicant elevated fixed costs of $110,000, considering the complexity of the valuation, the parties' conduct, and the offers to settle.

This family law trial addressed three main issues: the regular parenting schedule, the respondent's alcohol consumption during parenting time, and the children's contact with a third party.

The applicant sought an asymmetric shared parenting schedule, mandatory alcohol monitoring for the respondent, and restrictions on contact with Ms. Foy.

The court affirmed the existing equal-time parenting schedule, finding it promoted the children's best interests and stability.

It ordered the respondent to abstain from alcohol during parenting time and use an alcohol monitoring device for one year due to past breaches of court orders and lack of insight into the impact of his drinking.

The request for restrictions on contact with Ms. Foy was dismissed, as the court found it overreaching and lacking sufficient evidentiary basis, noting Ms. Foy was not a party to the litigation.

The Applicant sought an interim disbursement costs order of $150,000 to fund financial experts and counsel for an upcoming trial, arguing the Respondent had significant income.

The Respondent claimed financial destitution due to the commercial real estate market downturn.

The court dismissed the Applicant's motion, finding she failed to provide sufficient evidence of her inability to fund the litigation from other sources (e.g., family loans) and lacked a detailed breakdown of future costs, as opposed to past expenses.

The court emphasized that interim cost awards are discretionary, limited to exceptional cases, and require clear demonstration of necessity and reasonableness for future litigation expenses.

This decision addresses the terms of an adjournment of a family law trial caused by the Applicant's counsel's unavailability due to health issues.

The Respondent sought orders for disclosure, costs thrown away, and a further advance on equalization.

The court ordered the Applicant to pay $11,300 in costs thrown away and a further $58,000 advance on equalization, finding the Applicant responsible for the adjournment despite no fault.

The court also issued an interim child support order on consent.

The husband appealed a lower court decision that set aside two Quebec marriage contracts, which had stipulated separation as to property, thereby allowing the wife to pursue an equalization claim under Ontario's Family Law Act.

The Court of Appeal dismissed the husband's appeal, upholding the application judge's discretionary decision to set aside the contracts.

The basis for setting aside included the husband's failure to disclose significant assets (a $4 million inheritance) and the wife's lack of understanding of the contracts' nature and consequences, particularly regarding her entitlement to share in the income from inherited property, which is not automatically excluded from net family property under Ontario or Quebec law unless expressly stated by the testator/donor.

This is a costs endorsement following a two-day focused hearing where the applicant was entirely successful in setting aside Quebec matrimonial instruments.

The applicant sought costs of over $400,000, while the respondent proposed approximately $184,000.

The court, applying principles of reasonableness and proportionality, awarded the applicant $200,000 in fees and $65,106.73 in disbursements.

The court noted that neither party's offer to settle contained a true element of compromise, as the underlying issue was binary, and found some of the applicant's claimed hours for general research and costs submissions to be excessive and disproportionate, despite the high stakes and complexity of proving foreign law.

The appellant mother sought to change a custody order following her relocation from the Niagara region to the Ottawa area.

The trial judge rejected a proposed settlement, dismissed the motion to change, and ordered the children's primary residence to remain with the respondent father in Niagara, a decision upheld by the Court of Appeal.

One week before the Supreme Court hearing, the parties jointly advised that changes had occurred affecting the record, including that the daughter had been residing in Ottawa for over a year.

The parties had not filed a motion for new evidence regarding the children's current best interests, leaving the record incomplete.

The Court unanimously dismissed the appeal without costs, directing any ongoing dispute to be resolved in the Superior Court through a variation order.

The appellant sought a retroactive variation of a child support order under s. 152 of British Columbia's Family Law Act after the child beneficiary had reached the age of majority and the original order had been terminated.

The Supreme Court of Canada unanimously allowed the appeal, holding that s. 152 of the Family Law Act confers jurisdiction on a court to vary a child support order retroactively regardless of whether the beneficiary remains a dependent child at the time of the application and regardless of whether the order is still extant.

The majority further held that the payor's sustained failure to disclose actual income over eleven years constituted blameworthy conduct justifying retroactive support dating back to the original 2001 consent order.

The concurring reasons of the Chief Justice and Martin J. articulated broader policy grounds rooted in the best interests of children, access to justice, and the gendered dimensions of child poverty.

Lily Klassen brought a motion in her family law application seeking occupation rent, consolidation of her family law proceeding with a civil action brought by Kyle's parents (Henry and Beverley Klassen) for loan repayment, striking the jury notice in the civil action, and applying the Family Law Rules to the combined case.

The court dismissed the request for occupation rent without prejudice, finding the issue better suited for trial.

However, the court granted the consolidation of the two proceedings to be tried together in Family Court, struck the jury notice in the civil action, and ordered that the Family Law Rules apply to the trial, citing the risk of inconsistent findings and the efficient use of judicial resources, especially in light of the COVID-19 pandemic's impact on court operations.

The applicant father brought a motion seeking an order for three consecutive weeks of summer holiday time with his daughter, including permission to travel to Germany.

The respondent mother opposed the motion, arguing for a delay pending a clinician's report from the Ontario Children's Lawyer (OCL) and a suspension of summer access.

The court denied the father's request for international travel and restricted summer access to one-week non-consecutive periods, pending the OCL report.

The decision was based on the child's best interest, considering the high level of parental acrimony, conflicting affidavit evidence regarding the child's relationship with the father, and a recent incident during an access visit.

The court emphasized the value of the OCL report in ascertaining the truth and guiding decisions on parenting time.