Tracy Engelking

This decision addresses the costs of the September 2022 trial on financial issues in a family law matter.

The Applicant, Jennifer DeGiorgio, sought $54,140 in costs, while the Respondent, Nicola DeGiorgio, sought $20,000.

The court found Jennifer to be the more successful party at trial, particularly regarding spousal support entitlement and child support arrears.

The court considered the parties' offers to settle and Nicola's unreasonable behaviour concerning financial disclosure and pre-trial spousal support payments.

While finding counsel's rates reasonable, the court reduced the claimed hours due to excessiveness and overlap with other issues.

Ultimately, the court ordered the Respondent to pay the Applicant $45,000 in costs, inclusive of disbursements and HST.

The respondent brought a motion to enforce draft Minutes of Settlement that were negotiated and finalized between counsel.

The applicant's counsel had sent the final draft to the respondent, who signed it, but the applicant subsequently refused to sign, citing a new psychological assessment of the child.

The court applied the objective test for a settlement and found that a meeting of the minds had occurred, the essential terms were agreed upon, and the agreement was not conditional.

The court granted the motion and ordered the Minutes of Settlement to be incorporated into a final order.

The applicant brought a fourth motion to change a final order, seeking retroactive and ongoing child support adjustments, correction of a 2017 error, termination of ongoing child support for the child S., disclosure from the respondent, proportionate sharing of S.'s post-secondary expenses, and relief regarding RESPs and a CPP-D benefit.

The court granted some retroactive child support adjustments and corrected the 2017 error.

It ordered ongoing child support to continue while the child was living at home and established proportionate sharing for s. 7 expenses.

However, the court dismissed the applicant's requests to terminate ongoing child support, for the respondent to pay a CPP-D benefit to the child, and for relief concerning a discontinued RESP account.

This motion to change concerned the applicant mother's request to relocate the children of the marriage from Ontario to Hohenfels, Germany, due to her new partner's military posting.

The respondent father opposed the relocation, arguing it would negatively impact his parenting time, communication with the children, their relationships with paternal relatives, and that the eldest child did not wish to move and felt unsafe.

Applying sections 16(2), 16(3), 16.92(1), and 16.93(2) of the Divorce Act, the court found that the respondent had not met his burden of proving the relocation was not in the children's best interests.

The court determined the mother's relocation plan was reasonable, her historical caregiving role was strong, and the father's concerns regarding parenting time, communication, and safety were not substantiated or could be mitigated.

The court also weighed the children's views, noting the eldest child's views might be influenced by parental conflict.

The relocation was granted.

The Children's Aid Society of Ottawa brought a summary judgment motion seeking an order for extended society care for four children.

The parents opposed the motion, seeking a trial.

The court applied a highly cautionary approach to summary judgment in child protection matters, noting recent positive changes by the parents and questioning the admissibility and relevance of some of the Society's evidence, particularly police reports.

While dismissing the parents' argument regarding a custody order to the grandmother without her consent, the court found a genuine issue requiring a trial regarding the best interests of the children, specifically between extended society care and a return to parental care under supervision.

The Society's motion for summary judgment was dismissed.

The applicant sought that parties bear their own costs, while the respondent sought over $237,000 in costs for a bifurcated parenting trial.

The court, applying the Family Law Rules, found the respondent to be the more successful party at trial.

While acknowledging the applicant's limited means, the court awarded the respondent $104,662 in costs, comprising fees for two law firms and costs thrown away from a prior adjournment, but significantly reduced the amount sought due to excessive billing and the partial success of the respondent's offer to settle.

The Applicant Mother brought a Motion to Change the Final Order of Justice Mackinnon, seeking sole decision-making authority and a varied parenting schedule for the parties' eight-year-old child.

The Respondent Father sought dismissal of the motion.

The court found a material change in circumstances due to the father's adherence to conspiracy theories, which negatively impacted his ability to make decisions in the child's best interests, particularly regarding health and education.

The court granted the mother sole decision-making authority and varied the weekday parenting time to reflect the current practice.

However, the alternating weekend parenting time remained unchanged, as it was deemed consistent with the child's best interests.

The Respondent brought a motion seeking expanded parenting time, including a progression to a week-about schedule.

The Applicant opposed this, seeking continued supervised or monitored parenting time, citing a history of family violence and her role as the primary parent.

The court considered the best interests of the children under the Children's Law Reform Act, including the impact of family violence.

The court declined the Respondent's request for a drastic change to a week-about schedule but granted unsupervised and more expansive parenting time than previously ordered, while maintaining the Applicant as the primary parent.

The court also clarified that a previously signed Separation Agreement regarding financial issues remained in effect despite the Respondent's attempt to void it.

Costs were not awarded due to mixed success.

This endorsement concerns a costs award following a trial where S.B. was the entirely successful party.

S.B. sought full indemnity costs of $157,681.47, citing G.S.'s bad faith conduct, failure to follow court orders, and causing significant delays and unnecessary litigation steps.

The court found G.S.'s conduct unreasonable and in bad faith, noting the waste of court time.

After accounting for some overlaps with previously ordered costs and a trial adjournment not attributable to G.S., the court found the requested fees reasonable and ordered G.S. to pay S.B. $146,000 in costs.

The respondent father brought a motion to change a 2011 final order, seeking to vary ongoing child support and retroactively reduce or eliminate child support arrears and section 7 expense contributions.

The applicant mother opposed the motion.

The court applied the framework from Colucci v. Colucci, finding that while the father's mental health constituted a material change in circumstances, he failed to provide effective notice of his income changes.

The court declined to retroactively reduce arrears prior to the formal notice date (May 2021) due to the father's delay, conduct, and the children's ongoing need for support.

Ongoing child support was varied from the formal notice date based on the father's current income, but the significant arrears accumulated prior to May 2021 were not reduced or rescinded.

The respondent mother brought a motion seeking findings of contempt against the applicant father for alleged breaches of a final parenting order, including issues related to daycare drop-offs, summer camps, and extracurricular activities.

The court dismissed the motion, finding that the alleged transgressions did not meet the strict threshold for civil contempt and that some had reasonable explanations or were minor.

The court noted that contempt should be a remedy of last resort and encouraged the parties to use mediation or a motion to change to resolve their disputes.

In a high-conflict parenting trial, the court found a prolonged and severe pattern of coercive and controlling family violence by the applicant father against the respondent mother, with ongoing harmful impact on the child.

Applying the best-interests analysis under the Children’s Law Reform Act, the court held that the father’s conduct, including interference with parenting time, inappropriate communications, and pressure placed on the child, rendered him incapable of supporting the child’s relationship with the mother or making decisions in the child’s best interests.

The court ordered that the child reside primarily with the mother, granted the mother sole decision-making authority, imposed a staged and conditional parenting regime for the father, dismissed the father’s relocation request, and continued a restraining order.

The court also imputed the father’s income at $50,000 for child support purposes and directed ongoing support.

The applicant mother sought sole decision-making authority and primary residence of the two children, with the respondent father's parenting time limited to the status quo.

The father sought parallel decision-making and a shared parenting schedule.

The court found that the parties had a high-conflict relationship and that the mother's judgment was impacted by her negative view of the father, including unsubstantiated allegations of sexual abuse.

Relying on the recommendations of a court-appointed assessor, the court ordered parallel decision-making, granting the father authority over health decisions and the mother authority over education and dental decisions.

The court also expanded the father's parenting time to include alternating weekends and every Wednesday overnight.

In a family law application that had been outstanding for five years, the self-represented party refused to participate in the trial without counsel, citing medical issues and stress.

The moving party brought a motion for the appointment of an amicus curiae to assist the court and ensure the trial could proceed.

Applying the principles from Morwald-Benevides, the court found that the self-represented party was hopelessly incompetent to self-represent and that the assistance of an amicus was essential to the adequate discharge of the judicial function.

The motion was granted, and Legal Aid Ontario was directed to provide a list of lawyers willing to act as amicus.

The father brought a motion to change seeking to vary previous orders regarding the primary residence of one of the children, child support, and spousal support.

The court found a material change in circumstances, determining that the child's primary residence had shifted to the father.

Consequently, child and spousal support were varied.

The court also imputed income to the father based on a three-year average after finding his divestiture of a corporation to his son was not at arm's length.

The father's claim for occupation rent was dismissed, but he was credited for his contributions to the matrimonial home's expenses pending its sale.

The applicant mother brought a motion to change a final consent order, seeking primary residence and sole decision-making authority over the parties' six-year-old child, who had been diagnosed with ADHD and ODD.

The respondent father opposed and sought primary residence and sole decision-making authority.

The court found that the father was better equipped to manage the child's behavioural issues and provide stability.

The court ordered primary residence to the father during the school year, with joint decision-making authority where the father has the final say.

The court also ordered the father to pay retroactive child support and the mother to pay ongoing table support based on an imputed income.

The mother brought a motion to change a final order to permit her to relocate the parties' child from Ottawa to the Greater Toronto Area, where she resides with her new husband and their children.

The father opposed the relocation and sought to maintain the existing shared parenting arrangement.

The court found that a material change in circumstances had occurred and that the relocation was in the child's best interests, noting the child's strong preference and the father's limited time spent with the child during his parenting time.

The court granted the relocation, ordered a new parenting schedule, and ordered the father to pay ongoing child support based on the table amount, while imputing an income of $40,000 to the mother for the period of shared parenting.

This endorsement addresses the issue of costs following a motion heard on June 24, 2021.

The Respondent, who was the more successful party on the substantive issues of the original motion, sought costs of $19,000.

The Applicant sought an order for each party to bear their own costs.

The court applied the principles of costs under the Family Law Rules, including indemnification, encouraging settlement, and discouraging inappropriate behaviour, as well as factors under Rule 24(12) and the consequences of offers to settle under Rule 18(14).

The court found the Respondent to be the successful party on the substantive issues and noted that the Respondent's offer to settle was more favourable than the outcome for the Applicant.

The Applicant was ordered to pay costs to the Respondent.

The Applicant mother sought Ontario jurisdiction for a parenting order for three children she removed from Nigeria without the father's consent.

The Respondent father sought the children's immediate return to Nigeria, arguing Ontario lacked jurisdiction.

The court found the children were wrongfully removed and retained, declined jurisdiction under Section 23 of the Children's Law Reform Act, and ordered their immediate return to Nigeria, concluding that the Nigerian courts would prioritize the children's best interests despite allegations of domestic violence and concerns regarding LGBTQIIA+ issues.

The parties, married for almost six years, separated in 2017.

The Applicant sought divorce, parenting relief, child and spousal support, and equalization.

The Respondent sought similar relief.

The court determined the parties' incomes for support purposes, found the Respondent entitled to spousal support for eight years commencing January 1, 2018, and ordered the Applicant to pay an equalization payment of $35,461.38 after post-separation adjustments.

The court also resolved outstanding holiday parenting time, ordering shared time for Easter and Thanksgiving weekends, and alternating Halloween.