Susan E. Galarneau

This is a costs endorsement following the dismissal of an appeal.

The Court of Appeal for Ontario determined that the appeal was not devoid of merit or frivolous, and there was no partial success or misconduct by the respondent.

Consequently, the respondent was awarded partial indemnity costs.

This appeal concerned the jurisdiction of the Ontario court in a family law dispute over parenting time, decision-making responsibility, and child support.

The appellant father argued that the motion judge erred in finding the child habitually resident in Ontario, claiming he did not tacitly consent or acquiesce to the child's move from Montreal to Ottawa.

The Court of Appeal dismissed the appeal, finding that despite a minor error by the motion judge in considering post-application conduct, sufficient evidence supported the finding of the father's tacit consent or acquiescence to the child's habitual residence in Ontario.

This costs endorsement arose from three events in a family law matter where the respondent mother removed children from the matrimonial home and withheld them.

The applicant father brought an urgent motion, a substantive motion for interim decision-making and parenting, and a review motion.

The court found the applicant to be the successful party on the primary issues of decision-making and parenting time.

The respondent's conduct was deemed unreasonable, and she failed to accept a reasonable offer to settle from the applicant.

Considering the applicant's success, the respondent's unreasonable behaviour, and the applicant's offer to settle, the court ordered the respondent to pay costs of $17,250 to the applicant.

Following a five-day family law trial regarding custody and extracurricular activities where the applicant father was successful, he sought costs of $123,063.07.

The respondent mother argued each party should bear their own costs due to her financial hardship and willingness to settle other issues prior to trial.

The court declined to award costs for steps prior to September 2019 where costs were not reserved, but found the father presumptively entitled to costs for the trial.

Balancing the father's success against the mother's pre-trial settlement efforts and financial hardship, the court awarded the father $60,000 in costs on a partial indemnity basis, payable in 24 monthly instalments.

The applicant mother brought a Motion to Change a 2016 final order regarding parenting time, and the respondent father sought sole decision-making and enforcement of financial terms.

The court found a material change in circumstances due to the parties' de facto shared parenting arrangement prior to the mother's 2019 mental health crisis.

The court ordered a week-on/week-off shared parenting schedule, finding it in the children's best interests despite high conflict and allegations of family violence.

Child support arrears were fixed at zero due to the shared parenting arrangement and similar incomes.

The mother was also ordered to fulfill her outstanding equalization obligations by transferring pension funds and paying cash, failing which the matrimonial home must be sold.

This trial addressed two main issues: custody of the children and their attendance at the Rodnik Russian School on Saturdays.

The court found that despite a history of conflict, the parents demonstrated a sufficient ability to communicate and cooperate, leading to an order for joint custody.

Regarding the Russian school, the court determined it was an extracurricular activity, not a part of the normal curriculum, and therefore not mandatory during the Father's parenting time, to allow for diverse experiences and quality time with him.

The applicant father brought a motion to change a final order, seeking to limit the respondent mother to supervised access, remove the right of first refusal, eliminate holiday access, and obtain the right to travel with the children without the mother's consent.

The father alleged a material change in circumstances due to the mother's ongoing conflict, baseless allegations of abuse, and acts of contempt.

The mother opposed the motion, denying risk and contempt, and sought increased access.

The court found a material change in circumstances based on the detrimental impact of the mother's behavior on the children and her deliberate contempt for refusing to sign travel consent.

The court varied the access schedule, reducing the mother's access to the son to alternate Saturdays and to the daughter to Friday evening until Saturday afternoon, and permitted the father to travel with the children without the mother's consent.

This endorsement addresses multiple motions brought by both the applicant and respondent concerning parenting arrangements for their 10-year-old son.

The applicant sought an order for the respondent to comply with the access schedule and for the appointment of the Office of the Children's Lawyer (OCL).

The respondent sought leave to amend pleadings, to strike certain evidence, and an order for no contact between the child and the applicant's spouse.

The court dismissed the applicant's request for OCL involvement and an adjournment of the hearing.

It granted the respondent leave to amend pleadings and to strike evidence (both on consent).

Regarding the no-contact request, the court imposed a temporary condition that the child not be left alone with the applicant's spouse, rather than a full no-contact order.

Access for the applicant was ordered to resume immediately.

The father brought a motion to change a final consent order regarding custody and access of two children with special needs.

The father sought primary residence of one child and a change of school for both children, while the mother sought to maintain the status quo.

Applying the best interests of the child criteria under the Children's Law Reform Act, the court granted the motion in part, ordering that the primary residence of one child be changed to the father and that both children attend the father's proposed school.

The parties also consented to a parenting coordination agreement to address ongoing conflict.

The Father (applicant) sought costs of $65,000 after successfully obtaining sole custody in a motion to change.

The Mother (respondent) argued for no costs due to her modest means and the resolution of some issues prior to trial.

The court, applying Rule 24(11) of the Family Law Rules and s. 131(1) of the Courts of Justice Act, found the Father presumptively entitled to costs but reduced the amount to $30,000, payable over six years, considering the parties' compromises, the Mother's financial situation, and the importance but not excessive complexity of the issues.

The court declined to deem the costs as additional support enforceable by the Family Responsibility Office.

The Father brought a motion to change a divorce order, seeking sole custody and a variation of child support, citing the Mother's persistent unfounded allegations of abuse, non-compliance with court orders, and interference with the children's education and health.

The Mother sought to maintain joint custody or obtain sole custody for herself.

The court found a material change in circumstances due to the deleterious effects of parental conflict on the children, the Mother's persistent unfounded allegations, and her lack of insight into the children's needs.

Sole custody and primary residence were granted to the Father, with weekly access to the Mother.

In the context of a motion to change custody and access, the respondent requested an order under section 137(2) of the Courts of Justice Act to publish the court's forthcoming decision using initials for the parties, children, and witnesses.

The applicant consented to the request.

The court noted the high-conflict nature of the proceedings and the vulnerability of the children, who were already exhibiting signs of emotional distress.

The court granted the order, finding it necessary to protect the children from future emotional harm and to preserve their privacy and dignity, without stifling public comment on the issues.

A custody dispute between separated parents concerning their young child following an interim order that placed the child primarily with the father pending trial.

The mother sought restoration of the previous arrangement under which the child primarily resided with her, relying in part on a social worker’s recommendation.

The court rejected the recommendation after finding it based on an inaccurate understanding of the parties’ historical caregiving roles and for failing to address the impact of reversing the existing arrangement.

Applying the best interests test under s. 24 of the Children’s Law Reform Act, the court emphasized the child’s stability, successful adjustment in the father’s community, and concerns about the mother’s earlier relocation conduct.

The court concluded that maintaining the existing residence with the father while preserving generous access to the mother best served the child’s interests.

Following a family law motion concerning arrears of child support and spousal expenses, the successful party sought substantial indemnity costs of $10,000.

The responding party argued success was divided and proposed a reduced costs award.

The court considered the factors under Rule 24 of the Family Law Rules, including relative success, settlement offers, financial disclosure conduct, reasonableness of counsel’s rates and time, and the losing party’s reasonable expectations.

The court found the moving party was substantially successful and had made a reasonable offer to settle, but not one warranting full indemnity costs.

Costs were fixed at $6,000 inclusive of HST plus disbursements.

Following a prior decision awarding costs to the applicant after success on a family law motion, the court determined the appropriate quantum of costs.

Applying Rule 24 of the Family Law Rules, the court emphasized that the respondent’s unreasonable conduct, including repeated failures to comply with disclosure orders, delay of proceedings, and misleading allegations, significantly increased litigation costs.

The court awarded costs on a full recovery basis and partially included preparation time related to a prior abandoned summary judgment motion that materially assisted the successful motion.

The court fixed legal fees and disbursements totaling $8,093.63 inclusive of HST, payable immediately by the respondent.

The respondent mother brought an interim motion seeking sole custody of the parties’ two children along with child and spousal support.

The court declined to grant interim sole custody, finding no evidence that the existing de facto joint custody arrangement negatively affected the children’s interests.

However, the court ordered the father to pay combined child and spousal support based on imputed incomes of $60,000 for the father and $12,000 for the mother, along with retroactive support and proportional payment of section 7 expenses.

Standard decision‑making and communication clauses were imposed to improve parental cooperation and guide joint decision‑making pending trial.

The applicant father brought an emergency motion seeking custody and primary residence of the child after alleging that the respondent mother repeatedly violated prior court orders and deliberately frustrated his access.

The court found the mother had repeatedly made unsubstantiated allegations of abuse against the father, withheld information necessary for the child’s care, and interfered with court‑ordered access.

The judge determined that the father had demonstrated consistent and cooperative parenting while the mother’s conduct undermined the child’s relationship with him.

Concluding that the mother was presently unable to facilitate the father’s role in the child’s life, the court found that the child’s best interests required an interim transfer of custody and primary residence to the father, with liberal access to the mother and a view toward future shared parenting.

The parties brought opposing motions regarding the mother's unilateral relocation to Toronto with their infant child.

The mother alleged she moved due to fears for her safety based on the father's abusive behaviour.

The father sought the child's return to Ottawa and orders for custody and contempt, arguing the mother was frustrating his access.

The court found the mother's allegations lacked credibility and that she relocated to frustrate the father's access rights.

Applying the best interests of the child test, the court ordered the mother to return the child to Ottawa within 21 days, maintained the father's unsupervised access, ordered a parenting capacity assessment, and ordered the father to pay interim child support.