Steven Myles Bookman

Decision determining costs following competing family law motions involving issues related to the matrimonial home and financial responsibilities.

Both parties claimed substantial success and relied on offers to settle under the Family Law Rules.

The court found success was divided and neither party acted unreasonably.

Considering the factors under Rule 24 and the timing and content of the parties’ settlement offers, the court concluded that neither party was clearly entitled to full costs, though the respondent should make a modest contribution to the applicant’s costs.

In a family law proceeding following separation, the applicant obtained an ex parte certificate of pending litigation (CPL) against a property purchased by the respondent after separation.

The respondent argued that the CPL should be discharged because the applicant had not asserted a direct legal or equitable interest in the property.

The court considered whether claims for equalization of net family property, a vesting order under s. 9(1)(d), and preservation orders under s. 12 of the Family Law Act were sufficient to bring an interest in land into question.

Relying on Nash v. Gilbert, the court held that such claims can ground a CPL because they place an interest in land in issue within the statutory scheme of equalization and preservation of assets.

Although the CPL was discharged by consent to permit the closing of a sale to third-party purchasers, the court ordered that the entire net proceeds of sale be held in trust pending further order.

This endorsement determined costs arising from a security-for-costs motion and a related motion concerning transfer of an interest and continuation of the proceeding.

The court found the defendants had considerable but not complete success on the security-for-costs issue, and reduced the amount sought to account for partial success and duplication in senior-lawyer time.

For the continuation issue, the court ordered each side to bear its own costs.

Overall, the court fixed a single fair and reasonable costs award payable by the plaintiff to the defendants.

The appellant, having successfully reduced the trial damages award on appeal to an amount lower than its pre-appeal offer to settle, sought costs of $11,347.53.

The respondents argued for no costs due to divided success.

Applying the principles from Boucher, the court rejected a purely mechanical calculation of hours and fixed costs at $5,000 plus disbursements and GST, finding this amount to be fair, reasonable, and within the reasonable expectations of the parties.

The appellant mother appealed a Crown wardship order, arguing that the Children's Aid Society's prior contravention of s. 140(2) of the Child and Family Services Act rendered the order a nullity.

She also argued the trial judge relied on stereotypes about alcoholism and improperly compared her to the prospective adoptive parents.

The Court of Appeal dismissed the appeal, finding that the Society's procedural breach did not affect jurisdiction, the trial judge's assessment of alcoholism was based on evidence rather than stereotypes, and the wardship decision correctly focused on the mother's inability to provide care and the child's best interests.

The appellant, a self-represented litigant at trial, appealed the dismissal of his application to vary spousal and child support.

At trial, he attempted to introduce a notarized letter regarding his income, which was rejected as hearsay.

The trial judge refused his request for an adjournment to call the author of the letter as a witness and drew an adverse inference from the failure to call the witness.

The Court of Appeal (majority) allowed the appeal, finding that the trial judge should have granted a reasonable adjournment to allow the self-represented appellant to fairly present his case.

A new trial was ordered.