Stephen Kirby

This is a costs decision following an urgent motion concerning parenting time.

The father sought to modify parenting arrangements and brought an ex parte motion with serious allegations against the mother.

The mother was successful in the underlying motion and sought costs of $20,000.

The father argued the amount was disproportionate and proposed $5,000, citing financial hardship from supervised access costs and child support obligations.

The court found the father's conduct was aggressive, litigious, and hovered close to bad faith.

The father failed to attempt settlement before commencing litigation and made unverified serious allegations.

The court ordered the father to pay costs of $18,000 inclusive of disbursements and HST, payable at $3,000 per month beginning September 1, 2025.

This decision addresses an urgent motion concerning parenting time for a 10-month-old child amidst serious allegations of family violence and mental health concerns.

The court carefully analyzed the evidence, including affidavits, text messages, audio recordings, and medical reports, applying the best interests test under the Children's Law Reform Act.

The court emphasized the importance of an expansive approach to evidence in family law, especially in cases involving family violence, and ruled on the admissibility of contested evidence.

Ultimately, the court ordered supervised parenting time for the Father, citing concerns about his conduct, mental health, and the safety of the child and Mother, and declined to grant a without prejudice order.

This costs endorsement addresses the allocation of costs following a family law appeal in which the appellant, Eleanor Dawn Hendriks, was substantially successful.

The Court of Appeal for Ontario awarded her costs for both the appeal and the underlying motion, reversing the motion judge’s previous order that required her to pay costs to the respondent.

The court found that the appellant was the more successful party and that the respondent did not meet the burden to show his settlement offers were more favourable.

The court also found that the appellant, as a self-represented litigant, was not unreasonable in her conduct.

The respondent mother brought a motion to set aside terms of a final consent order, claiming the applicant father had undisclosed corporate interests.

After the father's civil litigation regarding those interests failed, the mother continued her family law proceeding but ultimately withdrew it on the eve of trial.

The father sought costs of $105,504.

The court found the mother's continued litigation after the civil suit failed was unreasonable.

Applying Rule 12(3) of the Family Law Rules, the court awarded the father costs.

The court declined to award full recovery under Rule 18(14) because the father's offer to settle did not remain open until the hearing.

Costs were fixed at $51,076 on a partial recovery basis.

The applicant sought summary judgment to enforce a settlement agreement reached at mediation with her common-law partner.

The respondent denied a binding agreement, claiming lack of understanding, duress, and unconscionability.

The court found a binding agreement based on objective evidence, counsel's ostensible authority, and the parties' post-mediation conduct, dismissing the respondent's claims of duress and unconscionability.

The settlement, which included the sale of a farm and division of proceeds, was enforced.

The applicant mother brought a motion seeking an advance towards her disbursements and an advance to be credited against her future equalization payment.

The respondent father had a complex corporate structure and had failed to provide full financial disclosure, including the value of a family trust.

The court drew adverse inferences regarding the value of certain properties due to the father's non-disclosure.

Applying the test for an advance against equalization, the court found the mother had a clear entitlement and a need for the funds, ordering the father to pay a further advance of $300,000 from the proceeds of a recent property sale.

The respondent father brought a motion to terminate interim child and spousal support, arguing the adult child was no longer a child of the marriage and the maximum duration for spousal support had expired.

The applicant mother brought a cross-motion for interim disbursements to fund her litigation.

The court declined to adopt a previous arbitrator's negative credibility findings against the mother.

The court dismissed the motion to terminate support, finding genuine issues for trial regarding the child's sickle cell disease and the father's unverified corporate income, and noting the father lacked clean hands due to support arrears.

The court granted the mother's cross-motion, ordering the father to pay $100,000 in interim disbursements to level the playing field.

The respondent mother brought a motion to adjourn the applicant father's application for the return of their two children, who she had wrongfully retained in Colombia.

The court considered the factors for granting an adjournment, emphasizing the best interests of the children and the need for timely resolution in international child abduction cases.

The court found that the respondent was manufacturing delay and dismissed the motion for adjournment, directing her counsel to proceed with the hearing.

This is a supplementary judgment addressing outstanding issues from an appeal of family arbitration awards concerning property, spousal support, and costs.

The court recalculated the lump sum spousal support, reducing it from $227,185.00 to $170,816.00, based on revised asset bases due to a successful equalization payment appeal and correction of a calculation error regarding the retirement age/duration.

The arbitrator's costs award, which ordered the wife to pay the husband $67,500.00, was set aside, with the court finding divided success and an erroneous approach to assessing reasonableness based on settlement offers.

No costs were awarded for the arbitration or the appeal.

The appellant sought to vary a 2015 consent order (Mossip Order) regarding child and spousal support after the respondent's income significantly increased post-separation.

The motion judge dismissed the variation request.

On appeal, the Court of Appeal found the motion judge misapprehended evidence regarding child support overpayments, leading to arrears.

The Court also found the motion judge erred in law by concluding spousal support entitlement was solely contractual and by failing to consider the appellant's material change in circumstances.

The appeal was allowed in part: child support arrears were fixed, and spousal support was varied and made time-limited, while the refusal to order ongoing Table amount child support for adult children was upheld.

The applicant wife brought a motion for the partition and sale of the matrimonial home and for temporary exclusive possession pending the sale.

The respondent husband brought a cross-motion for partial summary judgment to enforce an alleged pre-litigation settlement agreement for him to buy out the wife's interest.

The court found that the correspondence between counsel did not constitute a binding agreement, as essential terms regarding spousal support and equalization were not settled.

The court granted the wife's motion for partition and sale, finding no prejudice to the husband, but dismissed her request for temporary exclusive possession due to insufficient evidence.

The applicant sought costs following a successful motion for temporary child and spousal support.

The court found the applicant was largely successful and that her offers to settle were as or more favourable than the final order on most issues.

The court also found the respondent engaged in bad faith by unilaterally withdrawing funds from a joint account and unnecessarily seizing a vehicle from the parties' daughter.

The court awarded the applicant $25,000 in costs, with $15,000 payable forthwith and $10,000 to be set off against any future equalization payment owed by the applicant.

The applicant wife brought a motion for temporary child and spousal support, both retroactive and ongoing, for herself and the three children of the marriage.

The court determined the respondent husband's income for support purposes to be $400,000, higher than his claimed income.

The court ordered temporary child support for two children (Maggie and William) and temporary spousal support, with adjustments for when the children attend university away from home.

The wife's claim for retroactive support was adjourned to trial.

The court declined to impute income to the wife at this stage, recognizing her efforts towards self-sufficiency.

This endorsement addresses the costs arising from an appeal and underlying arbitration concerning child vaccination decisions.

The appellant father had successfully appealed an arbitrator's decision, gaining sole final responsibility for vaccination-related decisions for the children.

The court considered the principles governing costs awards, including the presumptive entitlement of the successful party, the treatment of pro bono counsel for costs recovery, and the assessment of offers to settle.

The court found the appellant was the successful party but did not beat his offer to settle.

It concluded that costs on a partial indemnity scale were appropriate, ordering the respondent to pay the appellant $52,000 all-inclusive for costs of both the appeal and arbitration.

The appellant appealed an arbitrator's award that determined it was not in the best interests of the parties' two children to be vaccinated.

The Superior Court of Justice allowed the appeal, finding the arbitrator erred in his gatekeeping function by qualifying the respondent's experts, whose evidence on vaccine safety was unreliable and outside their expertise.

The arbitrator also erred by failing to admit government immunization guides under the public documents exception to the hearsay rule.

Having excluded the respondent's expert evidence and admitted the public documents and fresh expert evidence, the court found that the children's best interests required vaccination.

The appellant was granted sole decision-making responsibility for the children's vaccinations, and the respondent was ordered not to tell the children that vaccines are unsafe.

The moving party (respondent mother) brought a motion seeking the recusal of the case management judge from hearing an appeal regarding the vaccination of the parties' children.

The moving party argued that a reasonable apprehension of bias existed based on the judge's prior preliminary rulings in the case, decisions in unrelated family law cases involving public health guidelines, and media coverage of those decisions.

The court dismissed the motion, finding that the prior decisions were based on existing law and did not demonstrate that the judge had entered the fray or predetermined the issues.

The court also held that a reasonable person would not rely on provocative media articles to conclude the judge could not decide the appeal fairly.

This decision addresses a motion for leave to intervene brought by the Medical Officer of Health (City of Toronto) (MOH) in an appeal concerning the vaccination of children.

The appellant sought to overturn an arbitrator's decision that declined to order the children's vaccination, while the respondent opposed vaccination.

The court determined it had jurisdiction to hear the intervention motion remotely and in writing during the COVID-19 pandemic.

Applying the test for intervention, the court found that the MOH had a substantial public interest in the issues of vaccine efficacy, expert evidence gatekeeping, and judicial notice of public health policy.

The MOH's distinct public health perspective was deemed a useful contribution without causing injustice to the parties.

Leave to intervene was granted.

The respondent husband brought a motion for the sale of the matrimonial home.

The applicant wife brought a cross-motion for exclusive possession, temporary spousal support, child support for three children (two adopted, one biological adult son), and an advance on equalization or interim disbursements.

The court dismissed the applicant's claims for exclusive possession, ongoing child support for all three children, and interim disbursements/equalization advance.

However, the court granted the applicant temporary spousal support of $5,000 per month and ordered an immediate payment of $100,000 to the applicant from the net proceeds of the matrimonial home sale, with a similar amount to the respondent, and the balance held in trust.

Retroactivity for support was reserved for trial.

This appeal concerned the interpretation of a separation agreement's reconciliation clause and its effect on a pension waiver.

The parties had separated, entered into an agreement, reconciled for almost nine years, and then separated again.

The separation agreement stipulated that it would become void if reconciliation lasted more than 90 days, with an exception for "any payment, conveyance or act" made or done pursuant to the agreement.

The trial judge found the wife's specific release of her rights to the husband's Canada Post pension survived reconciliation.

The Court of Appeal found the trial judge erred by misapprehending the evidence (no payment was made for the pension entitlement) and by failing to give effect to the express voiding term of the reconciliation clause.

The Court clarified that the pension release was voided, entitling the wife to a share of the pension from the date of marriage.

The appellant appealed an order dismissing his application to remove a writ of seizure and sale filed by a law firm against the matrimonial home.

The law firm had represented the appellant's wife in matrimonial litigation and obtained judgment for outstanding fees.

The appellant argued the writ constituted an encumbrance requiring his consent under section 21 of the Family Law Act.

The Court of Appeal dismissed the appeal, holding that the wife did not encumber the matrimonial home; rather, the law firm, as an arm's length creditor, was entitled to file the writ.

The appellant's interest in the home remains subject to the writ.