Susan Arlitt

The respondent, Brian Bower Henry, brought a motion to change seeking to set aside a prior order made by Justice S. Kershman at an uncontested trial, and to change terms of the parties’ Separation Agreement.

The applicant, Linda Elizabeth Bompas, opposed the request and brought a cross-motion for summary judgment dismissing his case.

The court dismissed the respondent's argument to set aside the child support provisions of the prior order, finding no mistake in law and that child support is a right of the child.

However, the court found the respondent's argument regarding the pension division as a penalty clause to be arguable, noting potential disproportionality between the penalty and the default.

The applicant's request for summary judgment was declined as it was not properly before the court.

The court ordered a trial of the issue to determine the meaning and enforceability of the pension penalty clause in the Separation Agreement and to address potential double counting of child support arrears.

A precondition for the trial was the respondent's payment of prior costs.

The Respondent mother brought a motion for temporary sole custody, no access to the Applicant father, and a restraining order, following the Applicant's arrest for first-degree murder.

The Applicant did not file a responding affidavit.

The court granted the Respondent temporary sole custody, no access to the Applicant, permission to obtain a passport for the child and travel internationally without the Applicant's consent, and an interim restraining order against the Applicant for the safety of the Respondent and children.

The court declined to extend the restraining order to the maternal grandparents due to jurisdictional and standing issues and limited the radius to 100 meters.

Leave was granted for the Respondent to amend her Answer.

The applicant sought summary judgment for sole custody, no access, child support, and a restraining order against the respondent, who was incarcerated for sexually assaulting the applicant's other child.

The court granted sole custody to the applicant, no access to the respondent (unless agreed/ordered), and a restraining order for both children, mirroring criminal terms for the child K. and permanent for child L. However, the court declined to impute income to the respondent for child support due to his incarceration and limited means, reducing his obligation to $0 for the present, with future support to be determined upon re-employment.

The applicant mother brought an urgent motion to vary a prior custody and access order after the respondent father pleaded guilty to sexually assaulting the mother's older daughter from a previous relationship.

The father consented to the mother having temporary sole custody of their shared child.

The court found that a material change in circumstances had occurred but determined it was in the child's best interests to maintain a relationship with the father.

The court ordered temporary supervised access for three hours per weekend, to be supervised by the paternal grandmother as supported by the Children's Aid Society.

The applicant was substantially successful on a motion to change and obtained a better result than his offer to settle.

The court resolved an outstanding issue regarding life insurance on consent, ordering the applicant to maintain an $18,000 policy until January 2018.

On the issue of costs, the court noted the applicant utilized both senior and junior counsel but failed to provide actual time dockets, raising concerns about duplication of effort.

Applying the principle of proportionality and considering the respondent's reasonable expectations, the court fixed the applicant's costs at $27,000 inclusive of disbursements and HST, which may be credited against his spousal support arrears.

Parents with an existing joint custody order brought a motion and cross‑motion regarding custody arrangements once the child reached school age.

The court considered the best interests of the child under s. 24(2) of the Children’s Law Reform Act and reviewed evidence including Children’s Aid Society records, medical records, and affidavit material.

Although the parents previously exercised equal parenting time, the week‑about arrangement became impractical once the child began attending school.

The court found the mother had historically taken the primary role in managing the child’s health, schooling, and day‑to‑day welfare, and that the child’s relationship with siblings in the mother’s household supported stability.

The existing order was varied to provide joint custody with primary residence with the mother and extended parenting time for the father.