Toni E. Wharton

A comprehensive family law trial decision addressing parenting, property division, and oppression claims arising from a marriage breakdown.

The applicant mother sought to vary a consent parenting order, enforce section 7 expenses, obtain equalization of family property, and pursue oppression remedies against a numbered company.

The respondent father resisted variation of the parenting order and disputed property valuations.

The court found the respondent in breach of the consent order regarding parenting coordination, awarded sole decision-making responsibility to the applicant, ordered equalization payment of $56,011.23, found oppressive conduct by the respondent and the numbered company, and ordered the winding up of the numbered company.

Claims for loss of opportunity damages and punitive/aggravated damages were dismissed.

The applicant sought costs of $17,440.19 for a motion to consolidate civil and family proceedings.

The parties reached a consent agreement on the day of the motion.

The court found the motion was premature and could have been avoided if counsel had conferred in advance.

However, the respondents failed to comply with the rules by not filing responding materials or filing them late.

The court awarded reduced costs of $4,500 to the applicant, payable equally by the respondents.

The father sought an order finding the mother in breach of a consent order regarding their child's Shia Ismaili religious upbringing, specifically weekly religious education classes.

The mother argued the order did not contemplate weekly interference with her parenting time and that the father had not made reasonable efforts to schedule classes during his time.

The court dismissed the father's motion, finding the mother was not in breach, as the order did not require her to give up every Saturday morning of her parenting time for religious education.

The court provided guidance on interpreting the order, emphasizing mutual support for the child's religious upbringing and the father's primary responsibility to schedule events during his parenting time.

The applicant father sought an immediate equal parenting schedule (2-2-3) for their 29-month-old son.

The respondent mother proposed a graduated schedule with increasing overnight time for the father.

The court, considering the child's best interests, young age, and the AFCC Parenting Plan Guidelines for toddlers, ordered a graduated interim and temporary parenting schedule.

This schedule provides for a transition from two separate overnights to three overnights per week for the father, while maintaining the child's weekday care with maternal grandparents.

The court emphasized that the status quo is not a default and there is no presumption for shared parenting, but also noted the thin evidentiary record and encouraged further mediation.

This decision addresses a motion brought by the wife (S.R.) to enforce a consent order regarding the release of $77,000 from the sale proceeds of the matrimonial home, representing retroactive child support, and past and future spousal support.

The husband (S.C.H.) argued that the funds should be held in trust until the final resolution of all issues, including costs, based on the interpretation of the consent order's holdback provisions.

The court applied principles of contractual interpretation, reading the order as a whole and considering surrounding circumstances, and found that the holdback language in paragraph 2 applied to all financial allocations, not just the property equalization payment.

The wife's motion was dismissed, and the funds are to remain in trust pending further order or agreement.

Following a trial where the applicant's family law claims were dismissed, the respondent sought her costs on a substantial and full indemnity basis.

The court found that the respondent was the successful party and had made a settlement offer that she beat at trial, entitling her to costs under Rule 18(14).

However, due to credibility concerns regarding both parties, the court declined to award full indemnity costs.

The respondent was awarded partial indemnity costs up to the date of her offer and substantial indemnity costs thereafter.

The applicant and respondent, former unmarried cohabitants, purchased a home together in 2001.

In 2002, the applicant transferred his 50% interest to the respondent.

After their relationship ended in 2013, the applicant sought a 50% interest in the property via resulting or constructive trust, or alternatively, damages for unjust enrichment based on his contributions to home renovations and the respondent's cleaning business.

The court dismissed all claims, finding the 2002 transfer was for valuable consideration, defeating the resulting trust claim.

The unjust enrichment claim failed because the applicant's room and board provided a juristic reason for his contributions, and he failed to prove the value of his labour or materials.

Claims for a joint family venture and conversion of personal property were also dismissed.

The respondent, having been entirely successful on the appeal of a family law matter, sought partial indemnity costs of $53,407.33.

The appellant argued the costs should not exceed $18,789.66.

The Court of Appeal applied the principle that costs must be fair, reasonable, and proportionate.

Acknowledging the voluminous record and the importance of the issues, including child custody, the court fixed the costs payable by the appellant to the respondent at $35,000 inclusive of disbursements and taxes.

The appellant mother appealed a trial judge's order granting sole custody of their daughter to the respondent father, ordering her to pay child support, equalization, and full recovery costs of $249,765.47.

The appellant argued that the trial process denied her natural justice, the credibility assessment was flawed, and the trial judge erred in determining income and post-separation adjustments.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's credibility assessment, her focus on the child's best interests, or her financial determinations.

Leave to appeal the costs award was also denied, as the trial judge properly exercised her discretion based on the appellant's bad faith conduct.

The applicant and respondent each brought motions regarding interim parenting, child support, spousal support, interim costs, and drug testing.

The parties agreed to temporary joint custody, but disputed the parenting schedule.

The court ordered the continuation of the current fixed access schedule due to the respondent's recent completion of a drug rehabilitation program and criminal charges.

The court determined the respondent's income for child support purposes based on his base salary, excluding historical discretionary bonuses paid by his father's company.

The applicant's requests for interim spousal support and interim costs were dismissed.

Both parties were ordered to undergo bi-monthly drug screening for six months.

The Father (Applicant) was awarded full recovery costs of $249,765.47 against the Mother (Respondent) following a 12-day trial.

The court found the Mother's conduct throughout the litigation to be unreasonable and in bad faith, characterized by false allegations of domestic violence, obstruction of access, misleading evidence, and repeated changes of counsel causing delay.

The Father had also exceeded all his offers to settle, which were reasonable and severable, unlike the Mother's non-severable and less favourable offers.

The costs award was justified on the bases of bad faith, unreasonable conduct, and the Father beating his Rule 18 offers to settle, serving to indemnify the successful litigant, encourage settlement, and sanction inappropriate behaviour.

The parties engaged in a high-conflict family law trial primarily concerning the custody and access of their 4-year-old daughter.

The mother sought sole custody and made allegations of domestic violence against the father, which she used to restrict his access.

The court found the mother's allegations to be false and that she had actually assaulted the father.

The court determined it was in the child's best interests to grant the father sole custody with a 50/50 shared parenting schedule, as he was the only parent willing to foster the child's relationship with the other parent.

The court also resolved financial issues, dismissing the mother's claim for spousal support, ordering her to pay equalization and occupation rent, and setting child support based on a set-off approach.

The applicants brought a 14B motion seeking directions regarding an application to dispense with the respondent's consent to the adoption of a child under section 138 of the Child and Family Services Act.

The applicants sought orders permitting the application to proceed under Rule 34(16) despite being a family adoption, clarifying required service materials, and obtaining substituted service by email.

The court granted most procedural directions but dismissed the motion for substituted service, requiring instead that the applicants effect special service in accordance with the Family Law Rules and the Hague Service Convention, as the respondent resides in the United States.