Shawn M. Philbert

This is a family law case concerning the final determination of custody, access, and financial issues for two children, Sierra and Ethan, following a ten-day trial and a review of interim orders.

The court addressed ongoing parental conflict, specific incidents involving the children and extended family, and the children's academic progress and relationships with each parent.

The judge made final orders for sole custody of Sierra to the Applicant and sole custody of Ethan to the Respondent, with adjusted access schedules and continued reunification counselling.

The court also provided directions for resolving outstanding financial issues and declined to revisit previous factual findings.

Gail Evans died intestate in 1992, survived by her husband, Carlton Fray (respondent), and two sons, Richard Evans (applicant) and Donald.

Gail held a 90% interest in a house as a tenant in common with Fray (10%).

Fray continued to live in the house, paying expenses.

The Court of Appeal previously directed a reference to determine the residue of the estate and the quantum of Richard Evans' share.

This decision on reference found that Gail's 90% interest vested equally in Fray and her two sons in 1995 by operation of the Estates Administration Act, resulting in Fray owning 40% and each son 30%.

The court determined that the estate's residue was zero as of the vesting date.

It ordered the house to be sold, with Fray receiving credits for mortgage, insurance, property taxes, and capital expenditures made since 1995, as well as his $75,000 preferential share.

Fray's claim for monthly living expenses was offset by a notional occupation rent for his exclusive use of the sons' 60% share of the property, effectively cancelling each other out.

The remaining proceeds are to be divided equally among the three, with prior payments from Fray to the sons deducted from their respective shares.

This case involved a motion to change a joint custody order for two children (ages 13 and 11) due to severe parental conflict.

The court found a material change in circumstances, concluding that joint custody was no longer appropriate.

Interim sole custody of the elder child (Sierra) was awarded to the mother (Marcia), with specific access for the father (Nelson) and reunification therapy.

Interim sole custody of the younger child (Ethan) was awarded to the father (Nelson), with a week-about access schedule for the mother.

The decision also addressed retroactive and ongoing child support, Section 7 expenses, and dismissed a contempt motion against the mother, while criticizing both parents and the school board for their conduct.

The court determined two issues: the percentage of time a child spent with each parent and the applicant's income for child support effective January 1, 2017.

The court found that the child did not spend 40% of time with each parent, so s. 9 of the Child Support Guidelines did not apply.

The applicant's income was imputed at $75,000 per annum, effective January 1, 2017, as his reasons for leaving a well-paid job to "kick back" and spend more time with his son were insufficient to avoid financial responsibilities, and he also received undeclared cash payments.

Following the settlement of high-conflict family law issues by consent orders, the parties sought a determination on costs.

The court noted the extreme disproportionality of the legal fees claimed by both parties relative to the modest financial issues and typical custody disputes involved.

Finding that the respondent unreasonably failed to accept the applicant's early offers regarding the basic framework for joint custody, the court awarded the applicant fixed costs of $25,000.

The 77-year-old plaintiff advanced over $1,000,000 to her adult daughter and son-in-law over a two-year period following a reconciliation.

The funds were used to pay off a mortgage, purchase a new home, install a pool, and included a transfer of shares.

After the parties had a falling out and the plaintiff moved out of the shared home, she sued for the return of the funds, claiming they were loans or held on resulting trust.

The court applied the Pecore principles and found that the defendants successfully rebutted the presumption of resulting trust, proving on a balance of probabilities that all advances were unconditional gifts.

The plaintiff's claims for unjust enrichment, moving expenses, occupation rent, and punitive damages were also dismissed.

The applicant father sought to vary a final consent order that provided for shared custody of the parties' three children, seeking sole custody, child support, and s. 7 expenses.

The court found a material change in circumstances as the shared parenting arrangement had become unworkable and the children consistently expressed a desire to live with the father.

The court awarded sole custody to the father with a specified access schedule for the mother.

The father was granted leave to amend his pleadings at trial.

The court ordered the mother to pay ongoing child support and partial retroactive child support, but denied the father's claim for retroactive s. 7 expenses due to lack of notice and his tactical use of an expert report.

In a post‑separation parenting dispute involving joint custody, the applicant sought to change the children’s school to one located within her residential catchment area and requested clarification of a right‑of‑first‑refusal clause in an earlier custody order.

The respondent opposed the school change and sought additional relief including maintaining the current school placement, appointment of the Office of the Children’s Lawyer, disclosure of the Children’s Aid Society file, and a defined summer access schedule.

The court held that the moving party failed to demonstrate that changing schools would be in the children’s best interests, emphasizing the importance of stability where the children were performing well and had attended the same school for several years.

The court ordered that the children remain at their current school, set specific summer parenting time, directed disclosure of CAS records, and appointed the Office of the Children’s Lawyer.

The respondent father brought a motion for temporary orders regarding custody, access, child support, and financial issues including carrying costs of the matrimonial home and an equalization payment.

The court ordered temporary joint custody with the children's primary residence remaining with the father, and granted the mother generous access.

The mother was ordered to pay interim child support and a proportionate share of Section 7 expenses.

The financial claims regarding the matrimonial home and equalization were adjourned to trial as they presented genuine issues requiring adjudication on proper evidence.

The deceased died intestate, leaving a spouse and two sons from a previous marriage.

The spouse, acting as administrator, paid the sons a portion of their inheritance but did not finalize the estate.

Years later, a dispute arose over the valuation of the sons' one-third interests in the estate's residue, which primarily consisted of a residence that had significantly appreciated in value.

The application judge valued the sons' interests as of the date of death.

The Court of Appeal allowed the appeal, holding that while the preferential share is calculated at the date of death, the residue must be valued at the date of distribution, allowing the sons to share in the property's appreciation.

Following a three‑day civil trial arising from a physical altercation at a banquet dinner, the plaintiff succeeded and was awarded damages.

The remaining issue concerned the appropriate costs award.

The court considered the plaintiff’s offer to settle, the defendant’s unsuccessful limitation defence, and the conduct of the trial under the simplified procedure, including excessive cross‑examination by defence counsel.

Applying Rule 57 of the Rules of Civil Procedure, the court found the plaintiff’s costs position reasonable and awarded the full amount claimed.

The plaintiff brought a civil action for damages arising from an alleged assault at a banquet after a dispute over a bottle of wine.

The defendant argued the claim was statute-barred and alternatively asserted self-defence.

The court held that although the Superior Court action was commenced outside the two‑year limitation period, the defendant effectively waived reliance on the limitation defence through counsel’s conduct when consenting to the withdrawal of a timely Small Claims Court action after a parallel Superior Court claim was issued.

On the merits, the court found the defendant was the primary aggressor and that the force used was neither reasonable nor proportionate to any threat.

The plaintiff was awarded damages for dental injuries and related losses.

The appellant mother appealed a trial judgment awarding sole custody and sole decision-making of their child to the respondent father, with equal parenting time.

The appellant also challenged the trial judge's decision to credit the respondent for certain household expenses.

The Court of Appeal dismissed the application to admit fresh evidence and dismissed the appeal, finding ample evidence to support the trial judge's conclusions on custody and financial arrangements.

The appellant appealed an order of the motion judge.

The Court of Appeal dismissed the appeal, noting that the motion judge did not address the relief sought under Rule 8.06(3) of the Rules of Civil Procedure.

The Court clarified that the order does not preclude the appellant from bringing a further motion for that relief upon proper service of the two individuals alleged to be partners.