Tanya C. Davies

This was a family law costs endorsement following a complex summary judgment motion.

The respondent, who had been completely successful on the motion, sought full indemnity costs after exceeding the terms of an offer to settle.

The court held that Rule 18 of the Family Law Rules entitled the successful party to full costs from the date of the offer and, considering the Rule 24 principles, fixed costs at $18,500 inclusive of HST and disbursements.

The applicants' arguments about excess time and partial indemnity were rejected.

In an addition to earlier reasons, the court addressed an omitted procedural issue raised by the respondent in a family law proceeding.

The respondent sought severance of the divorce claim from the balance of the applicants' claims as a preliminary step to permit the hearing of a summary motion.

The applicants did not oppose the request.

The court granted the severance request nunc pro tunc.

The respondent wife brought a motion for summary judgment to dismiss the applicants' claims for the return of a 50% interest in a property, wedding expenses, and wedding gifts following the parties' separation after a short marriage.

The applicants alleged the property transfer was conditional, fraudulently induced, and signed under duress.

The court applied the expanded fact-finding powers for summary judgment and found that a valid, unconditional gift of the property had been made, with no genuine issue requiring a trial regarding fraud, duress, or oral conditions.

The motion for summary judgment was granted and the applicants' claims were dismissed.

Family law trial addressing custody, access, child support, spousal support, and equalization following the breakdown of a short marriage.

The respondent claimed a beneficial interest in a residential property held in the applicant’s name pursuant to a declaration of trust for her mother and alleged the property constituted a matrimonial home or, alternatively, that he was entitled to compensation through unjust enrichment.

The court rejected both arguments, finding the property was an investment owned beneficially by the applicant’s mother and never occupied as a matrimonial home.

The respondent failed to prove financial contributions sufficient to establish deprivation for unjust enrichment.

Sole custody of the child was granted to the applicant with supervised access to the respondent and guideline child support based on the respondent’s income.

The court determined costs following the dismissal of a respondent’s motion seeking an order that funds be paid into court pending determination of his claim.

Although the applicant was successful on the motion and sought approximately $17,000 in costs, the court found that her conduct regarding disclosure contributed to the procedural complications and delays.

The court noted that significant disclosure should have been provided voluntarily and that the applicant had incorrectly denied receiving certain disclosure.

Considering the circumstances, the court declined to award full indemnity costs and fixed costs at $6,000 to the applicant and $500 to her mother.

The court also cautioned counsel that written submissions must always be shared with opposing counsel.

The respondent brought a motion seeking an order requiring the applicant and an added party (the applicant’s mother) to pay into court the net proceeds from the sale of a property alleged to be a former matrimonial home.

The moving party claimed a trust interest and alleged cash contributions toward renovations, asserting unjust enrichment and seeking preservation of funds pending determination of property claims.

The court reviewed the evidentiary record, including financial disclosure and the moving party’s inconsistent affidavits regarding the alleged cash contributions.

The court found the evidence insufficient to establish a prima facie case for unjust enrichment or to justify a mandatory interlocutory injunction requiring payment of funds into court.

While a triable issue remained as to whether the property may have been a matrimonial home, the motion was dismissed, subject to continuing an order restraining depletion of the applicant’s property under s. 12(a) of the Family Law Act.

The applicant father brought an interim motion seeking custody, shared parenting, property equalization, spousal support terms, and various ancillary orders shortly before trial.

The respondent mother brought a cross-motion seeking interim support.

The court declined to alter the existing de facto custody arrangement with the mother, holding that credibility disputes and parenting determinations should be resolved at trial.

However, the court granted limited procedural relief including production of CAS records and increased access as proposed by the mother.

On the cross-motion, the court ordered interim spousal support and increased child support based on the father’s income and the mother’s financial hardship.