Valois Ambrosino

The appellant appealed a summary judgment order and a trial decision upholding a separation agreement.

The motion judge had found the agreement was signed but directed a trial on whether an escrow condition requiring corporate counsel's approval was met.

The trial judge found the appellant waived the condition by her conduct.

The Court of Appeal dismissed the appeal, finding the appellant was out of time to appeal the motion judge's order and that the trial judge made no palpable and overriding error in finding waiver by conduct.

Following the dismissal of the applicant's motion for interim disbursements, the respondent sought costs of $41,598.46 on a substantial indemnity basis.

The applicant proposed costs of $7,199 payable in the cause.

The court found the respondent's costs excessive, reduced the hours claimed, and determined that the respondent's offer to settle did not attract Rule 18 consequences.

Costs were fixed at $15,000 on a partial indemnity basis, payable within 30 days.

The parties separated in 2011, and both brought motions regarding financial disclosure and the sale of the jointly owned matrimonial home.

The respondent sought an order to list and sell the home, while the applicant sought to purchase the respondent's half-interest.

The court ordered the immediate listing and sale of the matrimonial home, finding no evidence of malicious, vexatious, or oppressive conduct that would justify refusing the respondent's prima facie right to partition and sale.

The court also ordered both parties to provide extensive financial disclosure, including three years of personal and corporate bank statements, to assist in determining whether income should be imputed to the applicant for support purposes.

The applicant sought occupation rent after leaving the jointly owned matrimonial home due to severe conflict and alleged domestic violence, while the respondent remained in the property with a new partner and changed the locks.

The court considered the common law principles governing occupation rent where no order for exclusive possession exists, including the timing of the claim, duration of occupancy, inability of the non-resident spouse to realize equity, and equitable set-offs.

The evidence established that the applicant’s departure was effectively compelled and that the respondent had exclusive use of the property while delaying sale or buyout.

The court found it equitable to award occupation rent based on half of the fair market rental value.

Credits were to be applied for the respondent’s payments toward property taxes and the joint line of credit.

Following competing family law motions addressing temporary child support, parenting schedule, and claims for special or extraordinary expenses, the court was asked to determine costs.

The applicant sought substantial indemnity costs of $15,000, while the respondent argued for no costs or a modest award.

The court found success on the motions was divided: the applicant succeeded in maintaining the residential schedule and obtaining temporary child support based on imputed income, but failed on claims for intentional underemployment and s. 7 expenses, and obtained only partial retroactive support.

Considering the Family Law Rules, including Rules 24 and 18, and the parties’ settlement offers, the court concluded the applicant achieved only modestly greater success.

Costs were therefore fixed in a modest amount.