Shawn M. Philbert

The applicant and respondent brought cross-motions in a family law proceeding.

The applicant sought financial disclosure, interim exclusive possession of the matrimonial home, a certificate of pending litigation, and interim child and spousal support.

The respondent sought an order for the sale of the matrimonial home.

The court granted the applicant's requests for disclosure, exclusive possession, a certificate of pending litigation, and interim child support, noting her debilitating spinal condition and the ongoing pandemic.

The respondent's motion for the sale of the home was dismissed, and spousal support was deferred as the respondent was ordered to pay the home's maintenance costs.

This appeal concerned the equalization of net family property under s. 5(6) of the Family Law Act.

The appellant argued that the trial judge erred in finding that full equalization would be unconscionable and in awarding only 10% of the full equalization payment.

The Court of Appeal upheld the trial judge's decision, finding that the conclusion of unconscionability was reasonable given the short marriage, the extent to which the appellant's net family property derived from gifts from the respondent, and the disproportionate financial contributions.

The court also affirmed the trial judge's discretion in setting the unequal division at 10%, rejecting the appellant's argument for a pro-rated division based on the length of cohabitation.

The applicant father brought a motion regarding access to the parties' 8-year-old daughter.

Previous orders had found the respondent mother wrongfully withheld access and directed the parties to engage a parenting mediator.

Following reports that the mother was the major obstacle to reunification and that recent visits were marked by the child's violent behaviour, the father sought to suspend the access schedule until the parties received support from a psychotherapist.

The court ordered the parties to immediately engage the psychotherapist, with costs apportioned by income, and suspended the access schedule pending further recommendations.

The mother was ordered to pay $2,500 in costs for unnecessarily prolonging the litigation.

The applicant father sought to increase access to his 8-year-old daughter following a period of estrangement and resistance.

The court reviewed the joint recommendations of the family's mediator and the child's psychotherapist, who noted the child's severe anxiety and enmeshment with the respondent mother.

The court ordered a graduated access schedule leading to full weekend visits, along with behavioral expectations for the child and mandatory co-parenting and individual therapies for the parents.

The applicant father sought to expand his access to his 8-year-old daughter to a full weekend with a 'black-out' period preventing communication with the respondent mother.

The child had been strongly resisting access visits, which the court found was tolerated and potentially encouraged by the mother.

The court ordered the parties to continue working with a parenting mediator to gradually increase the frequency and length of visits.

The court also ordered the mother to take assertive steps and impose tangible consequences to manage the child's behaviour and promote the access visits, warning that a black-out period would be considered if access did not improve.

The applicant father brought a motion for the resumption of access to his 8-year-old daughter, which had been suspended following a physical altercation in June 2019.

Following the involvement of a parenting mediator, the parties agreed to resume in-person access visits.

The court ordered a specific schedule for the initial visits, with subsequent expansion to be guided by the mediator's recommendations.

The court also made orders regarding the apportionment of section 7 expenses for the child's therapy.

The plaintiff mortgagee brought a motion for summary judgment for possession of the mortgaged property and payment of the mortgage debt.

The defendant mortgagor opposed, arguing she was duped into the mortgage by third parties who were acting as agents for the plaintiff, and sought leave to issue a third-party claim.

The court found no evidence of an agency relationship between the plaintiff and the alleged conspirators, and granted summary judgment as there was no genuine issue requiring a trial.

The court denied leave to issue the third-party claim, finding it would cause undue delay and prejudice to the plaintiff.

The applicant father sought resumption of access to his 7-year-old daughter after an altercation led to the child's refusal to see him.

This was the third hearing of the motion, following previous decisions that the respondent mother had wrongfully withheld access and that mediation was imperative.

A parenting mediator provided a progress report indicating positive developments, including daily video calls and two successful face-to-face visits.

The court ordered the continuation of mediation, addressed minor issues regarding fees and communication, and scheduled a further hearing for October 2020 to review progress.

This is a costs decision following supplementary submissions regarding section 7 child support expenses and costs of multiple motions.

The applicant mother had brought three motions commencing in November 2018, approximately 19 months after the parties settled most issues by Final Minutes of Settlement dated March 29, 2017.

The court found that the mother was unsuccessful on substantially all claims, with only a small credit for certain section 7 expenses.

The respondent father was awarded costs of $7,500 inclusive of HST and disbursements, enforceable through the Family Responsibility Office as an incident of support.

The mother was also ordered to pay $3,257.00 in net section 7 expenses to the father.

The Applicant Father sought resumption of access to his daughter, which had ceased after an altercation.

The court, following an earlier decision finding the Respondent Mother wrongfully withholding access, noted progress in virtual access and mediation.

However, it also addressed troubling behavior from both counsel and the Mother's non-compliance with a previous cost order.

The court ordered the Mother to pay outstanding costs, for parties to continue mediation, and scheduled a further return of motion to address access.

This is a costs endorsement following the dismissal of Ms. Bilek’s motion to stay an order removing a preservation order against Mr. Booth.

The court found Mr. Philbert’s (counsel for Mr. Booth) costs demand of $8,615.60 to be highly unreasonable and disproportionate, noting his failure to genuinely attempt resolution as instructed.

Ms. Chambers’ (counsel for Ms. Bilek) proposal of $3,000 was deemed reasonable.

The court fixed Mr. Booth’s costs at $3,000, inclusive, emphasizing the need for counsel to resolve issues, especially during strained court resources.

The respondent wife brought an urgent motion seeking a stay of a portion of a final order that directed the removal of a preservation order on the applicant husband's RRSPs, pending an appeal.

The appeal concerned the trial judge's interpretation of s. 5(6) of the Family Law Act regarding an unequal division of property based on unconscionability.

The motion was heard in writing due to the COVID-19 pandemic.

Applying the three-part test for a stay pending appeal, the court found that the respondent failed to establish a serious question to be tried, concluding that the trial judge had properly applied the high threshold for unconscionability.

The motion for a stay was dismissed.

The applicant sought urgent relief for the resumption of access to his 7-year-old daughter after a 9-month cessation following a physical altercation during an access transition.

The respondent opposed, citing the child's trauma and anxiety, relying on reports from a pediatrician and social worker.

The court found the reports to be one-sided and unreliable, and criticized the respondent for obstructing mediation and failing to encourage access, deeming her actions a "wrongful retention" of the child.

The court ordered immediate daily virtual access and mandated mediation, with costs awarded against the respondent.

The applicant mother brought three motions seeking to amend her pleadings, set aside a Final Consent Order from March 29, 2017, transfer the case to Superior Court, and obtain increased child support and retroactive section 7 expenses.

The respondent father opposed these motions.

The court dismissed most of the mother's claims, finding that the issues had been settled in the Final Order and that allowing amendments would cause unjust disadvantage to the father.

The court determined that prospective section 7 expenses from March 29, 2017 forward remained outstanding and required DivorceMate calculations to be prepared for final determination.

Derek Crespy appealed his conviction for assault and the imposed sentence of 45 days imprisonment.

The appeal court reviewed the trial judge's findings of fact, credibility assessments, and sentencing decision.

The court found no error in principle regarding the conviction, the rejection of self-defence, the credibility assessment of witnesses, or the reliance on photographic evidence.

The court also found no reasonable apprehension of bias by the trial judge and no error in principle in the sentencing decision, noting the aggravating factor of an unprovoked assault involving kicking to the head.

Both the appeal against conviction and the appeal against sentence were dismissed.

The respondent moved to quash an appeal for lack of jurisdiction.

The appellant sought to have the appeal transferred to the Divisional Court in Oshawa and undertook to have the matter heard in September 2018.

The Court of Appeal granted the cross-motion to transfer the appeal to the Divisional Court, finding it appropriate given the complex appeal routes for child custody orders from the Family Division and the timely perfection of the appeal.

The motion to quash was dismissed.

The plaintiff, Ochea Ikpa, claimed an equitable mortgage over property previously owned by Godknows Itamunoala, based on a promissory note with a criminal interest rate.

The defendants, Tonye Itamunoala and Fiona Duckett (daughter and ex-wife of Godknows Itamunoala), who held a registered second mortgage on the property, brought a motion for summary judgment to dismiss the plaintiff's claim against them and to release the sale proceeds to them.

The court found that the defendants had no notice of the plaintiff's alleged equitable mortgage, thus it could not take priority over their registered interest.

Furthermore, the promissory note itself was deemed unenforceable as an equitable mortgage due to its manifestly illegal and usurious interest rate, entered into for an illegal purpose with troubling bargaining power dynamics.

The court also dismissed the plaintiff's claim of fraudulent conveyance, as there was no evidence the defendants had notice of the plaintiff's claim.

Consequently, the plaintiff lacked standing to challenge the quantum of the defendants' registered mortgage.

The motion for summary judgment was granted, dismissing the plaintiff's action against Tonye Itamunoala and Fiona Duckett.

The appellant, Fritz Michael Stoeckler, appealed his conviction for operating a motor vehicle with a blood alcohol level above the legal limit ("over 80").

The appeal challenged the trial judge's findings regarding reasonable suspicion for a breath demand and the dismissal of the mouth alcohol argument.

The court, applying a standard of palpable and overriding error for factual findings, dismissed the appeal.

It affirmed that the officer had reasonable grounds for the breath demand, as the smell of alcohol, consistent with prior consumption, did not provide a rational basis to suspect residual mouth alcohol that would invalidate the roadside screening device result.

The father of a six-year-old child sought the child's return to Texas pursuant to the Hague Convention on the International Return of Children and also sought to dismiss the mother's Ontario divorce application for lack of jurisdiction.

The application judge allowed both applications.

The mother appealed, challenging the findings on habitual residence, acquiescence, and intolerable situation.

The Court of Appeal dismissed the appeal, upholding the application judge's determination that the child's habitual residence was in Texas, that the mother had not established acquiescence or an intolerable situation, and that Ontario lacked jurisdiction over the divorce application.

The applicant mother brought a motion to change a final order to seek sole custody of the child, and the respondent father responded seeking sole custody and a finding of contempt against the mother for access denial and breaches of previous orders.

The court found a material change in circumstances due to the mother's frequent relocations, school changes, and introduction of new partners, which negatively impacted the child.

The court ordered joint custody with a parallel parenting regime, dividing decision-making responsibilities, while maintaining the child's primary residence with the mother.

The mother was found in contempt of court for deliberately breaching previous orders regarding the child's name change, decision-making consultation, and make-up access.