Tanya C. Davies

The respondent grandmother brought a motion to strike the applicant step-grandfather's application for contact with their grandson.

The respondent argued the issue was res judicata due to a prior child protection order granting her custody.

The court dismissed the motion to strike, finding the applicant was not a party to the child protection proceeding and the Children's Law Reform Act explicitly allows for contact applications following such orders.

The court ordered the biological parents to be added as respondents but declined to order the applicant to pay child support.

This endorsement concerns a costs award following an urgent motion heard on September 2, 2020.

The applicant, who was the more successful party on the motion, sought costs on a full recovery basis of $25,872.48.

The respondent argued these costs were excessive and proposed $3,000.

The court, applying the Family Law Rules on costs, found the applicant's claimed legal fees to be excessive for a short motion.

The court ordered the respondent to pay $4,000 inclusive of HST and disbursements to the applicant.

Following an eighteen-day family law trial where the applicant's claims to set aside domestic contracts were dismissed, the respondent sought full recovery costs of $102,603.73.

The court considered the parties' offers to settle, finding the respondent made an offer triggering Rule 18(14) consequences.

The court rejected allegations of bad faith but found both parties engaged in unreasonable behaviour, particularly the respondent's failure to provide full financial disclosure regarding his businesses.

The court ordered the applicant to pay costs of $53,750, reflecting partial indemnity prior to the respondent's offer and substantial indemnity thereafter, with a reduction for the respondent's disclosure failures.

The applicant father brought an urgent motion seeking temporary primary care of the parties' two young children, alleging the respondent mother's mental health posed a risk.

The mother, who was the primary caregiver prior to separation, also sought primary care.

The court found no evidence that the children were in danger in the mother's care, noting that neither the police nor the Children's Aid Society had raised protection concerns.

The court ordered that the children reside primarily with the mother, with the father having temporary access on alternate weekends and one mid-week overnight.

The applicant, O.M., sought to confirm and replace provisions of minutes of settlement, including custody and access, alleging parental alienation by the respondent, S.K. S.K. made serious allegations of physical and sexual abuse against O.M. and sought primary custody with supervised access.

The court found S.K.'s evidence not credible due to internal inconsistencies and her behavior following the alleged incidents.

The court found that S.K. engaged in parental alienation strategies.

Consequently, the court granted O.M. temporary sole custody and primary care of the child, with limited access to S.K., and confirmed the minutes of settlement regarding exclusive possession of the matrimonial home and spousal support.

Interim child support was ordered in accordance with the minutes of settlement, with O.M. entitled to seek reconciliation for overpayments.

The applicant sought to set aside a separation agreement and an amending agreement under section 56(4) of the Family Law Act, alleging lack of financial disclosure, duress, and unconscionability.

The court found that while the respondent failed to provide full financial disclosure regarding his businesses, the applicant understood the agreements, did not diligently pursue disclosure, and received substantial benefits.

The court declined to exercise its discretion to set aside either agreement, upholding both domestic contracts.

Consequently, the applicant's corollary claims for equalization of net family property, retroactive child support, and retroactive and ongoing spousal support were dismissed.

The respondent's claim for child support was also dismissed as the agreements were upheld.

The applicant sought to vary a final order regarding spousal support and set aside a waiver of pension entitlement.

In the context of this motion to change, the respondent brought a motion for disclosure of the applicant's former counsel's file, and the applicant brought a cross-motion for temporary spousal support.

The court ordered the production of the file, finding an implied waiver of solicitor-client privilege due to the applicant putting her state of mind and knowledge regarding the original settlement at issue.

The court dismissed the cross-motion for temporary spousal support, emphasizing the high test for interim variation of a final order, which requires exceptional circumstances not demonstrated by the applicant.

This endorsement addresses the costs arising from motions brought by both the Applicant father and Respondent mother.

The father was awarded 70% of his costs, fixed at $8,690, primarily due to the mother's unsuccessful and ill-advised pursuit of retroactive child support by motion and her late consent to add the father's name to birth certificates.

The court found the father was the successful party on the undue hardship issue and declaration of parentage, while the mother succeeded on the name change issue.

Costs for a contested adjournment were declined for the father.

The applicant mother sought to strike the respondent father's pleadings in response to her motion to change access and to require leave for the father to bring further litigation, specifically a motion to change child support.

The court dismissed the motion to strike the father's pleadings regarding access, emphasizing the importance of a full evidentiary record in custody/access matters.

However, the court granted the request to require the father to obtain leave before pursuing any motion to change child support, citing his egregious history of non-compliance with financial disclosure orders and outstanding costs.

The applicant sought an order postponing an upcoming trial or requiring security for costs due to the respondent's failure to pay outstanding costs awards and child support arrears.

The respondent sought leave to bring a motion to vary child support.

The court found that the respondent's efforts to pay child support arrears were inadequate to justify granting leave for his motion to vary.

However, given the respondent's apparent impecuniosity, the court declined to order security for costs or stay the proceedings, directing that the trial proceed as expeditiously as possible.

The applicant father sought child support below Guidelines due to undue hardship, access to information, a declaration of parentage, a name change for the children, and a restriction on the respondent mother relocating the children.

The respondent mother sought child support and retroactive child support.

The court granted the declaration of parentage and access to information.

It found the father met the undue hardship test due to unusually high access costs, reducing his child support obligation.

The request for a name change was deferred to trial due to premature relationship development and factual disputes.

The relocation restriction was addressed by undertakings from the mother to provide notice and consent to continued jurisdiction.

The issue of retroactive child support was also deferred to trial.

The applicant sought costs of $9,288 on a substantial indemnity basis following a successful motion to appoint the Office of the Children's Lawyer.

The respondent argued each party should bear their own costs, alleging the applicant's behaviour was unreasonable.

The court found the applicant was presumptively entitled to costs under Rule 24(1) of the Family Law Rules and that his behaviour was not unreasonable.

The court noted the respondent's failure to make an offer to settle was unreasonable.

The applicant was awarded costs fixed at $5,000 inclusive of HST.

The applicant father brought a motion requesting the involvement of the Office of the Children's Lawyer (OCL) in an ongoing high-conflict custody and access dispute.

The respondent mother opposed the motion, arguing it was premature as no material change in circumstances had been proven and that OCL involvement would further entangle the child in litigation.

The court found sufficient evidence of a material change and concluded that an OCL investigation would assist the court in determining the child's best interests given the escalating conflict.

The motion for OCL involvement was granted.

This decision concerns a costs award following a successful motion by the Applicant mother for temporary child support arrears and ongoing child support.

The Respondent father was found to owe significant arrears and had failed to provide financial disclosure, leading to income imputation and a finding of unreasonable behaviour and bad faith.

The court, applying Rule 24 of the Family Law Rules, considered the successful outcome for the applicant, the importance of child support, and the respondent's conduct.

While the applicant sought full indemnity costs, the court fixed costs at $8,732.63, inclusive of disbursements and HST, deeming this amount proportionate given the substantial retroactive and ongoing support awarded, and excluding clerical legal assistant fees.

The applicant sought to strike the respondent's pleadings for non-compliance with a disclosure order and requested costs.

The respondent brought a cross-motion to dismiss the applicant's motion and for temporary access to the children.

The court found that the respondent had substantially complied with the disclosure order and that striking pleadings was an extreme remedy not warranted by the facts.

The applicant's motion was dismissed.

The respondent's cross-motion for temporary access was also dismissed, as the issue of access had previously been ordered to be determined at trial.

No costs were awarded, as neither party was entirely successful on their respective motions.

The mother brought a motion for a temporary order for child support arrears, ongoing child support, and to impute income to the father.

The father claimed he was unable to find replacement employment after losing his job in 2012 and started an unsuccessful business venture.

The court found the father failed to provide adequate financial disclosure and was intentionally underemployed.

The court imputed an annual income of $49,628 to the father for 2015, 2016, and 2017, ordered him to pay ongoing child support, and calculated arrears at $61,893.84.

The issue of Section 7 expenses was deferred due to an incomplete evidentiary record.

The applicant brought a motion for interim spousal support and orders to maintain her as a beneficiary of life and health insurance.

The parties had a traditional 26-year marriage where the applicant was a stay-at-home parent.

The respondent, who was on permanent disability, had an income of $88,171 for spousal support purposes, while the applicant earned $45,100.

The court found the applicant had a strong compensatory claim and ordered interim spousal support of $1,350 per month, adjusting for her contribution to the interest on a joint line of credit.

The issue of retroactive support was deferred to the trial judge.

This decision addresses costs following competing motions for temporary relief regarding access and the appointment of the Office of the Children's Lawyer (OCL).

The court granted supervised access to the child at the father's expense, while also granting the father's request for OCL appointment.

The court found the mother largely successful on the access motion but noted unreasonable delay in advancing her position.

Considering the divided success and the mother's conduct, the court awarded the mother partial indemnity costs of $1,400.00, inclusive of HST, payable by the father.

The applicant sought immediate implementation of custody and access assessment recommendations, including a change to primary residence with the mother and alternate weekend access for the father.

The respondent opposed, arguing the recommendations were contentious and the existing shared parenting arrangement, in place for a year, should be maintained until trial.

The court dismissed the applicant's motion, finding that the proposed changes were significant, the applicant's affidavits were problematic, and the assessor's report was contentious and required cross-examination at trial.

The court emphasized that interim implementation of assessment reports should be discouraged, especially when there are serious credibility issues and a hotly contested factual record.

The Applicant brought a motion to change, seeking to terminate or reduce her spousal support obligation to the Respondent, retroactive to December 1, 2014, citing her new family obligations and financial hardship.

The Respondent opposed, requesting higher support due to his ongoing medical issues and inability to work.

The court, treating the matter as a review, reduced spousal support retroactively to $800 per month and prospectively to $1,000 per month, departing from the Spousal Support Advisory Guidelines (SSAG) ranges.

This departure was justified by the Applicant's new biological children and her assumption of significant marital debts, as well as the Respondent's continued need for support.

A further review was ordered for June 2018 to assess the Respondent's medical condition and efforts towards self-sufficiency.