Theresa Maddalena

This endorsement addresses the costs arising from the applicant's unsuccessful motion to reduce spousal support.

The respondent, who was entirely successful on the underlying motion, sought full recovery costs.

The applicant argued for costs to be reserved or awarded on a partial indemnity basis, excluding costs related to a case conference.

The court found the respondent was the successful party and, considering the factors under Rule 24(11) of the Family Law Rules, awarded costs on a partial indemnity basis, fixed at $10,424 all inclusive, payable by the applicant within 60 days.

The court declined to deal with costs of the case conference, noting that a costs decision should be made after each step in a family law case.

The applicant sought to quash two search warrants and exclude seized evidence under s. 8 and s. 24(2) of the Canadian Charter of Rights and Freedoms, arguing the warrants were issued without reasonable and probable grounds.

The Crown contended the searches were lawful and, alternatively, that evidence should be admitted.

The court reviewed the information to obtain (ITO) based on five confidential informants and extensive police surveillance, applying the Garofoli and Debot tests for assessing search warrant validity and informant reliability.

The court found that the totality of circumstances, including corroborated informant tips and observed patterns of suspicious activity (such as chemical burns and continuous occupation of a barn suspected of housing a clandestine drug lab), provided reasonable and probable grounds for the warrants.

The application was dismissed, as no s. 8 Charter breach was found.

The plaintiff brought a motion to amend her statement of claim, more than four years after its issuance and six years after her termination, to introduce claims related to medical disability preventing mitigation and a bad faith dismissal.

The court denied the plaintiff's request for an adjournment to cross-examine the defendant's affiant, finding it would not be useful.

The motion to amend the statement of claim was dismissed, as the court found significant prejudice to the defendant that could not be compensated by costs or an adjournment.

The delay in raising these new issues, particularly the medical disability and bad faith claims, deprived the defendant of a timely opportunity to investigate.

The bad faith claim was also deemed statute-barred.

The applicant sought an increase in spousal support and leave to amend her application to include a claim for an Islamic Marriage Contract (MEHR).

The respondent sought a reduction in spousal support and production of documents.

The court granted mutual disclosure orders, permitted the applicant to amend her claim for MEHR, and increased spousal support from $1,000 to $1,500 per month, retroactive to October 1, 2015.

The court declined to deviate from the Spousal Support Advisory Guidelines (SSAG) range despite the respondent's debt, finding that an award at the low end of the range could accommodate the circumstances.

The applicant sought substantial indemnity costs after successfully litigating a right-of-way dispute.

The respondents, through new counsel, argued for lower costs, citing ineffective prior representation and a late concession.

The court awarded the applicant $20,000 in all-inclusive costs, finding that the respondents' conduct, including an adjournment, unhelpful affidavits, and a late major concession, warranted more than partial indemnity.

The court also clarified its earlier order regarding the registration of the court orders on title at the respondents' expense.

The applicant, PRW Excavating Contractors Ltd., sought to enforce a 2007 judgment against additional respondents (individuals and related corporations) by utilizing the oppression remedy under the Ontario Business Corporations Act and by piercing the corporate veil.

The court found that the intermingling of corporate affairs by the individual respondents, coupled with a lack of critical disclosure, constituted oppressive conduct, making all respondents jointly and severally liable for the judgment under the oppression remedy.

The court also dismissed the respondents' argument that the claim was statute-barred, finding it was an enforcement of a judgment, not a new cause of action, and fell within the 15-year ultimate limitation period.

However, the court dismissed the claim to pierce the corporate veil, citing the high threshold for proving illegal or fraudulent conduct.

The applicant sought leave to cross-examine the affiant and sub-affiants of an Information to Obtain (ITO) for search warrants related to a methamphetamine lab.

The court dismissed the application, finding that the proposed cross-examination areas were either irrelevant, speculative, risked breaching confidential informant privilege, or would not elicit probative value to discredit the reasonable grounds for the warrant's issuance.

The court emphasized the high threshold for granting leave to cross-examine affiants, the importance of protecting informant identity, and the need to avoid unnecessary and time-consuming proceedings.

This family law trial addressed child support, retroactive child support, and equalization of net family property following the parties' separation.

The court imputed income to the respondent for child support purposes, calculated arrears, and established ongoing child support.

Regarding net family property, the court determined the value of a Cuban property to be nil and valued a business (Mojito’s House Ltd.) based on its actual sale price, dismissing allegations of a non-arm's length transaction.

Claims for unequal division of the matrimonial home were dismissed, and the court declined to make orders regarding household contents and jewellery due to lack of evidence and jurisdiction to distribute property in specie.

Ultimately, both parties' net family property was deemed nil, and their equalization claims were dismissed.

The applicants sought a declaration of a prescriptive easement over a portion of the respondents' adjacent property for vehicle and pedestrian ingress and egress to their garage and parking area.

The court applied the four-part test for prescriptive easements, including the requirement of 'reasonable necessity' and continuous, uninterrupted, open, peaceful, and 'as of right' use for 20 years prior to land titles registration.

Finding the applicants' evidence compelling and the respondents' counter-arguments insufficient, the court granted the easement and ordered the removal of a fence erected by the respondents.

The applicant sought a declaration and injunction to remove fences obstructing an express mutual right-of-way on adjacent properties.

The respondents claimed abandonment of the right-of-way and possessory rights for a board fence erected prior to Land Titles conversion, and conceded the removal of a chain link fence erected after conversion.

The court found no evidence of abandonment of the right-of-way prior to Land Titles conversion and ordered the removal of all obstructing fences, issuing a permanent injunction against interference.

The applicants' initial application was dismissed, leading to a costs endorsement.

The respondent Town sought substantial indemnity costs of $21,547.21.

The applicants argued against costs or for partial indemnity, asserting the issues were valid and counsel's time excessive.

The court, applying Rule 57.01(1) of the Rules of Civil Procedure, determined that the respondent, as the successful party, was entitled to costs on a partial indemnity basis.

Despite delays attributed to the applicants, the court found no conduct warranting substantial indemnity costs under the "reprehensible, scandalous or outrageous" threshold established in Young v. Young.

Costs were fixed at $18,112.80, all-inclusive, payable by the applicants within 30 days.

The Town of Fort Erie sought costs on a partial indemnity basis after successfully defending an application brought by Fredrick Bracken.

Bracken argued for no costs, claiming public interest litigant status.

The court awarded costs to the Town, finding Bracken was not a public interest litigant and his conduct necessitated the proceedings.

The court fixed costs at $15,000, inclusive of disbursements and HST, payable by Bracken within 60 days, applying Rule 57.01(1) and the principle of reasonableness.

Following a prior decision granting summary judgment to the plaintiffs in the amount of $95,576.53 with prejudgment interest and no stay of execution, the court addressed the issue of costs.

The plaintiffs sought costs of approximately $38,000 inclusive of disbursements and HST, arguing entitlement to elevated costs under Rule 49 due to settlement offers.

The court found Rule 49.10 inapplicable because no settlement offers remained open for acceptance at the time of the summary judgment motion.

Applying the general presumption that a successful party is entitled to costs, the court held the plaintiffs were entitled to partial indemnity costs.

After considering overlap between work on the claim and counterclaim, the court fixed costs at $31,000 inclusive of disbursements plus HST.

A contested guardianship application was brought under the Substitute Decisions Act regarding an adult incapable person who suffered a catastrophic hemorrhagic stroke resulting in permanent disability and the need for 24‑hour care.

The incapable person’s sister applied to be appointed guardian of personal care and property, while the spouse and adult children brought a counter‑application seeking guardianship and relocation of the incapable person closer to them.

The court considered the best interests of the incapable person and the statutory considerations under ss. 66(6) and 66(7) of the Substitute Decisions Act concerning maintaining supportive family contact and consultation.

Evidence demonstrated longstanding separation between the spouses, limited involvement by the spouse in the incapable person’s medical care since the prior guardianship appointment, and significant conflict between the spouse and the existing guardian.

The court concluded that the sister was best positioned to manage the incapable person’s care and property while fostering family contact, and appointed her as guardian.

The applicant mother brought a motion to change seeking interpretation of a 2008 consent order governing child support, extraordinary expenses, and disclosure obligations.

The court determined that table child support and non‑medical special expenses were non‑variable until July 1, 2011 but that medical expenses under s.7 of the Child Support Guidelines were to be shared proportionately beginning in 2008 based on the parties’ 2007 incomes.

The court found the respondent father had failed to provide timely financial disclosure and recalculated child support based on proper guideline income, rejecting claimed deductions not permitted under Schedule III.

Arrears were ordered for table support, extracurricular expenses, and medical expenses, and ongoing monthly contributions were set for extraordinary and medical expenses.

The order also required ongoing annual income disclosure and confirmed the mother’s authority to make final decisions regarding s.7 activities if the parties cannot agree.

A residential home builder commenced an action to recover unpaid amounts under a construction contract and enforce a construction lien.

The homeowners argued that the governing contract price was an earlier quotation and that omitted items generated credits reducing the contract value, and they counterclaimed for deficiencies.

The court found that the binding agreement was the written contract executed by the homeowners after construction commenced, setting the contract price at $725,000 inclusive of GST.

The court rejected the homeowners’ interpretation that “omit” items created credits and held there was no documentary evidence supporting such a claim.

The construction lien was also found to have been registered within the statutory 45‑day period under the Construction Lien Act.

Judgment was granted to the builder subject to a modest deduction for proven deficiencies.

The appellant insurance broker appealed a Small Claims Court judgment holding it liable for failing to properly advise the respondents regarding a vacancy exclusion in an insurance policy for a boarding house property.

The insurer had denied coverage for vandalism-related water damage that occurred while the property was vacant.

The trial judge found the broker breached its duty by failing to explain the vacancy exclusion despite the respondents relying on the broker’s expertise to obtain appropriate coverage.

Applying the appellate standards of review for factual and legal errors, the court held there was no palpable and overriding error in the factual findings and no error of law in the application of governing principles on insurance broker duties.

The appeal was dismissed.

Following a family law trial concerning spousal support, the court addressed the issue of costs.

The successful party sought recovery of legal aid and privately retained legal fees after obtaining a more favourable result than her pre‑trial offer to settle.

The court considered the presumption of costs under Rule 24 of the Family Law Rules and the cost consequences of an unaccepted offer to settle under Rule 18(14).

The court also found elements of bad faith conduct by the responding party, including non‑compliance with a prior consent order and attempts to minimize income through a closely related corporation.

Costs were fixed at $20,500 inclusive, enforceable as support through the Family Responsibility Office and also enforceable against the respondent’s corporation.