Stephen Durbin

Following a family law motion in which the moving party obtained an award of interim expenses but for a significantly reduced amount, the court determined costs of the motion.

Applying Rule 24 of the Family Law Rules, the court held that the successful party is presumptively entitled to costs absent unusual circumstances.

Although the moving party sought full indemnity costs exceeding $16,000, the court reduced the amount to account for partial success and for preparation time related to a separate motion to amend pleadings that had been adjourned.

The court also rejected allegations of bad faith relating to the timing of the opposing party’s cost submissions.

Costs were fixed on a substantial indemnity basis in the amount of $8,641.

The respondent wife brought a motion for interim disbursements to fund her response to the applicant husband's pending motion for summary judgment.

The underlying family law proceeding involved the validity of two domestic contracts and the applicant's interest in two family trusts.

The court applied the test for interim disbursements under Rule 24(12) of the Family Law Rules, finding that the respondent's case had sufficient merit to warrant pursuit and that she was impecunious.

The court ordered the applicant to pay $27,000 to cover legal and accounting fees necessary to respond to the summary judgment motion.

The applicant brought a motion to change a 2003 consent order respecting child support, seeking retroactive support and section 7 expenses.

The court considered whether there had been a material change in circumstances under the Divorce Act sufficient to justify variation of the consent order.

The applicant argued that the respondent’s increased income justified guideline child support retroactively.

The court held that the income increases were foreseeable and contemplated by the parties when the consent order was made and therefore did not constitute a material change in circumstances.

The motion to change was dismissed, although the respondent agreed to pay a modest retroactive amount and ongoing child support pursuant to the existing terms.

Competing summary judgment motions arose from disputes over several properties allegedly subject to trust arrangements and financial contributions.

The moving party sought summary judgment transferring two Ontario properties based on trust agreements, while the opposing parties sought to strike the action in favour of a separate application.

The court held that material factual conflicts regarding alleged breaches of trust payment obligations and the interpretation of the trust agreements required a trial.

Claims relating to two other Ontario properties were dismissed as statute‑barred under the Limitations Act, 2002 and barred by res judicata following dismissal of an earlier action.

Claims regarding a foreign property were dismissed for lack of jurisdiction and because the property had never been transferred to the defendants.

Competing summary judgment motions arose from disputes over several properties allegedly subject to trust arrangements and financial contributions.

The moving party sought summary judgment transferring two Ontario properties based on trust agreements, while the opposing parties sought to strike the action in favour of a separate application.

The court held that material factual conflicts regarding alleged breaches of trust payment obligations and the interpretation of the trust agreements required a trial.

Claims relating to two other Ontario properties were dismissed as statute‑barred under the Limitations Act, 2002 and barred by res judicata following dismissal of an earlier action.

Claims regarding a foreign property were dismissed for lack of jurisdiction and because the property had never been transferred to the defendants.

In a family law motion concerning parenting issues, the applicant sought a s. 30 assessment under the Children’s Law Reform Act and an order permitting questioning of the respondent.

The court approved the assessment and apportioned its anticipated cost of $6,000 according to the parties’ relative incomes, requiring the applicant to pay 80% and the respondent 20%, with any excess payable by the applicant.

The motion for questioning was dismissed because the statutory criteria under the Family Law Rules were not met and the proposed questioning would not advance the determination of the children’s best interests.

The court found the respondent to be the successful party and awarded substantial costs against the applicant after considering settlement offers and litigation conduct.