Tracy Engelking

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.

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.

The Children's Aid Society of Ottawa brought a summary judgment motion seeking a final order for extended society care for the child, C.R.P., who is an Inuk child and has been in care beyond statutory timelines.

The mother opposed the motion, arguing there was a triable issue regarding the child's best interests, particularly given her improving mental health and active search for housing.

The court dismissed the Society's motion, emphasizing the "highly cautionary" approach to summary judgment in child protection cases, especially those involving Indigenous children, and the need to consider "super weighted" best interests factors under the Child, Youth and Family Services Act, 2017 and the Federal Act respecting First Nations, Inuit and Metis children, youth and families.

The court found genuine issues requiring a trial, particularly concerning the interplay of statutory timelines and Indigenous child welfare principles.

This decision resolves outstanding financial issues and costs following a partial settlement during a family law trial.

The court imputed income to the applicant for support purposes, determined proportionate shares for section 7 extraordinary expenses, and addressed claims related to the matrimonial home.

The respondent's claim for matrimonial home expenses was dismissed due to a prior separation agreement.

The court also made a costs order, finding mixed success on financial issues and ordering partial recovery costs, with a net amount payable by the respondent to the applicant.

The father (D.L.) brought a motion to change decision-making authority and sought an order for the children to participate in the Family Bridges program, alleging parental alienation by the mother (J.L.).

The mother opposed, seeking sole decision-making authority and arguing the children were estranged due to the father's conduct.

The court dismissed the father's motion, finding no evidence of parental alienation and concluding that the children's reasons for rejecting the father were legitimate.

The court granted the mother sole decision-making authority.

The Children's Aid Society of Ottawa brought a summary judgment motion seeking a finding that the child, K.C.E.F., was in need of protection and an order for Extended Society Care for adoption by kin caregivers.

The mother, who had a history of mental health and parenting capacity issues, did not participate in the motion, and the father was in default.

The court found no genuine issue requiring a trial, determined the child was in need of protection, and granted Extended Society Care, noting the child's Indigenous heritage and the kin caregivers' willingness to support it.

The court also clarified its obligation to set specific access terms, rather than delegating discretion to the Society or caregivers.

The Applicant sought an order for the sale of a property in which she held a 50% interest via a trust agreement, and an adjustment of temporary child support.

The Respondent filed a cross-motion seeking to reduce/expunge child support arrears and declare the property solely his, attempting to set aside the trust agreement.

The court ordered the sale of the property, dismissing the Respondent's request to invalidate the trust agreement due to lack of evidence.

The court imputed income to the Respondent at a higher level due to insufficient financial disclosure and adjusted child support accordingly, including a set-off amount.

The Respondent's request to expunge child support arrears was dismissed due to his unilateral cessation of payments.

The applicant, Mr. McDonald, brought a motion seeking an updated parenting assessment or, alternatively, a Voice of the Child Report.

The respondent, Ms. McMullen, sought to dismiss the motion.

The court dismissed Mr. McDonald's motion, finding that neither an assessment nor a Voice of the Child Report was necessary for the underlying Motion to Change, which primarily concerned the parents' inability to co-parent rather than clinical issues or parenting capacity.

The court also noted the applicant's outstanding unpaid costs awards from previous arbitrations.

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.

The respondent initially brought a motion to change a Paternity Agreement to terminate or reduce child support for the parties' adult child.

The applicant responded, seeking retroactive child support adjustments and contributions to section 7 expenses for post-secondary education.

The court applied the D.B.S. and Michel v. Graydon framework for retroactive support, finding the applicant's delay in seeking increased support understandable due to language barriers and the payor's blameworthy conduct in failing to disclose income changes.

Retroactive child support of $10,182.50 (less a $1,100 credit) was ordered from July 1, 2011, to December 31, 2017.

However, the applicant's claim for section 7 expenses for the 2019-2020 academic year was dismissed, as the child's OSAP loan portion and summer earnings were deemed sufficient to cover expenses.

A formula for future section 7 contributions was established, requiring the child to contribute $1,500 from summer income and 75% of the OSAP loan portion before parental contributions.

The respondent mother brought a motion for temporary child support, spousal support, and an interim disbursement.

The applicant father had sought to decline jurisdiction and return the children to Egypt, but his application was adjourned.

The court found it had jurisdiction to order interim child support under the Family Law Act, as the Egyptian divorce did not address it and the children had a substantial connection to Ontario.

The court also found it had jurisdiction for spousal support because the Egyptian divorce was not recognized under the Divorce Act.

The court imputed an annual income of $250,000 to the father due to voluntary underemployment and lack of financial disclosure.

An interim disbursement of $4,000 was ordered for the mother's expert witness fees, applying the less stringent family law criteria for advance costs.

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.

The appellant, M.D., appealed an order from the Ontario Court of Justice that struck his Response to Motion to Change and directed an uncontested trial.

The original order was made due to M.D.'s repeated non-compliance with court orders, including non-payment of costs and failure to provide documents.

The Superior Court of Justice, on appeal, applied a three-pronged test for striking pleadings, finding that a triggering event occurred and striking the pleadings was appropriate given the history of non-participation.

However, the motion judge erred by not considering other remedies, particularly in a case involving the best interests of a child.

The appeal was allowed in part, reinstating the matter for trial but with M.D.'s pleadings remaining struck.

M.D.'s participation was limited to cross-examination of the respondent's witnesses and final submissions, and he was prohibited from bringing pre-trial motions without leave.

This is a costs decision following a procedural motion, a motion to change, and a trial of an issue in a family law matter.

The respondent, Mr. Eaton, was largely successful in all three underlying hearings and had made several offers to settle.

The applicant, Ms. Boily, was ordered to pay costs to the respondent in the total sum of $14,500.81, inclusive of HST and disbursements, for the three matters.

The court considered the parties' conduct, offers to settle, and the outcomes relative to those offers, finding Mr. Eaton entitled to full recovery of costs for the procedural motion and the trial of an issue due to Ms. Boily's failure to accept more favourable offers, but only partial recovery for the motion to change due to Mr. Eaton's prior non-compliance with disclosure orders.

The applicant brought a motion for summary judgment seeking spousal support, equalization of net family property (NFP), and an unequal division of NFP, among other claims.

This decision addresses the equalization claim, following a previous partial judgment.

The applicant sought an equalization payment and an unequal division based on the respondent's post-separation conduct, including depleting a pension and incurring joint debts.

The respondent, self-represented, argued against an unequal division due to his financial and health circumstances.

The court calculated an equalization payment of $40,815.51 owed by the respondent to the applicant.

The court declined to order an unequal division, finding that the respondent's actions, while problematic, did not meet the high threshold of "unconscionability" under the Family Law Act, especially since the respondent was already ordered to indemnify the applicant for the post-separation debts.

Summary judgment was granted for the equal division, with specific orders for how the equalization payment would be satisfied from a Law Society Compensation Fund payout and the respondent's WSIB Loss of Retirement Income Benefit.