Victor Mitrow

An estate trustee brought a motion seeking authorization to set aside estate funds to pay anticipated legal fees incurred in defending a surviving spouse’s claim for equalization of net family property.

The respondent argued that the trustee should personally fund the litigation because he was also a beneficiary and the estate assets might be insufficient to satisfy a potential equalization payment.

The court reaffirmed the long‑standing principle that trustees are entitled to indemnification from estate assets for reasonably incurred legal expenses in the administration and defence of the estate, including litigation expenses.

The existence of a co‑existing interest as beneficiary did not defeat the trustee’s right to indemnity.

The court authorized $100,000 to be set aside from the estate for legal fees subject to oversight and without prejudice to the respondent’s right to challenge reimbursement at trial.

Following a motion concerning interim child support, the court determined the appropriate costs award.

The moving party had succeeded in imputing income to the responding party under s. 19(1)(h) of the Child Support Guidelines by grossing up dividend income received from a solely‑owned corporation and also succeeded on the commencement date of increased interim support.

The responding party argued for divided success, but the court rejected that position and found the moving party was presumptively entitled to costs.

However, the court reduced the amount sought because the successful party failed to serve a Rule 18 offer to settle.

Costs were fixed and ordered payable forthwith.

In a child protection proceeding under the Child and Family Services Act, the court considered a motion supported by the society and the mother to place two children in the mother’s temporary care subject to society supervision.

The children had previously been placed in the father’s care and later in society care due to ongoing parental conflict and emotional harm concerns.

Updated therapeutic evidence indicated the children now felt safe in the mother’s home and that the mother had taken meaningful steps to address prior issues.

The court found the risk of emotional harm had subsided and ordered the children returned to the mother under an interim supervision order with structured access for the father and mandatory therapeutic involvement.

The matter was scheduled for review to monitor compliance and the children’s adjustment.

The appellant appealed a summary conviction for operating a motor vehicle with blood alcohol exceeding the legal limit, arguing the trial judge erred by admitting breath test results obtained after a breach of the appellant’s right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms.

The arresting officers failed to clarify the appellant’s ambiguous response “not yet” when asked whether he wished to contact a lawyer and did not advise him of the police obligation to hold off obtaining evidence until he had a reasonable opportunity to contact counsel.

The appellate court held that the trial judge unreasonably characterized the police conduct as merely inadvertent and at the low end of seriousness.

The failures of multiple officers to address the ambiguous response and to implement the right to counsel constituted at least negligent Charter‑infringing conduct.

The conviction was quashed and a new trial ordered.

On a motion for interim child support, the court considered whether a payor parent who received income from a wholly owned corporation through dividends rather than salary should have income adjusted for child support purposes.

After applying Schedule III s. 5 of the Federal Child Support Guidelines, the court held that a further adjustment under s. 19(1)(h) was appropriate because dividend income taxed at a lower rate did not fairly reflect the payor’s resources.

The court relied on authorities addressing income derived from wholly owned corporations and the need for consistent treatment between salaried earners and corporate payors.

Income was therefore grossed up beyond the actual dividend received to approximate the payor’s available income.

The court also rejected the payor’s claim that parenting time exceeded 40% and ordered interim child support and arrears.

The applicant sought a four-month extension of society wardship for a nine-year-old child who had been in care for nearly 29 months.

All parties consented to the extension.

The court raised the issue of whether section 70(4) of the Child and Family Services Act permitted an extension that would exceed the 30-month statutory maximum for a child over six years old.

After reviewing conflicting case law on whether section 70(4) should be interpreted liberally to allow multiple extensions or strictly as a finite ceiling, the court held that the legislation imposes a strict maximum of 30 months for a child six or older.

The court granted only a one-month extension to reach the 30-month limit and declined the requested four-month extension.

Following a second trial in a bifurcated family law proceeding concerning equalization, spousal support, and child support, the court determined costs.

The applicant was largely successful at trial on equalization and spousal support but unsuccessful on certain issues including child support and some property deductions.

The court rejected arguments that offers to settle triggered automatic cost consequences under the Family Law Rules due to deficiencies in the offers.

Applying r. 24 and considering the reasonableness of the parties’ conduct and the issues pursued unsuccessfully, the court awarded partial indemnity costs significantly below the full recovery sought.

Following a lengthy family law trial involving equalization, child support, and spousal support, the court determined outstanding issues of costs and pre‑judgment interest.

The court exercised its discretion under ss. 128 and 130 of the Courts of Justice Act to set a prejudgment interest rate of 2.6% on the equalization payment, starting from the date of separation and adjusted for advance payments.

In determining costs under the Family Law Rules, the court found both parties had engaged in bad faith conduct, but the respondent’s conduct—particularly repeated failures to provide financial disclosure and breaches of court orders—had significantly prolonged the litigation.

The court therefore awarded full recovery costs for the early phase of the litigation while reducing recovery for issues affected by the applicant’s own bad faith conduct.

Costs were fixed globally with a portion designated as a support order enforceable under the Family Responsibility and Support Arrears Enforcement Act, 1996.

In a child protection proceeding arising from a high-conflict custody and access dispute, the court determined costs following an earlier order granting the father unsupervised access to the children.

The father sought substantial indemnity costs of $22,000 against the mother, while the mother argued for no costs or that the issue be reserved.

Applying rule 24 of the Family Law Rules and recognizing that the usual presumption of costs does not apply in protection cases, the court considered the parties’ conduct, the limited success achieved, and the modest means of both parents.

Although the father obtained some success on the access issue, both parties had engaged in past unreasonable conduct contributing to the conflict.

The court awarded a modest costs amount payable at the conclusion of the protection proceeding.

Following dismissal of a motion to change support due to the responding party’s failure to provide court‑ordered financial disclosure, the court determined costs.

The successful party sought over $14,000 attributable to the motion, relying in part on an alleged offer to settle.

The court declined to apply the automatic cost consequences of the Family Law Rules because the offer was not produced and the arrears calculations were acknowledged to be inaccurate.

While the responding party’s failure to disclose financial information was found to be unreasonable, it did not amount to bad faith.

Applying the principle of reasonableness and considering partial success obtained on some issues, the court fixed costs at $6,500 inclusive of HST and disbursements and ordered the amount enforceable as a support order.

The applicant wife brought a motion for the Ontario court to assume jurisdiction over all matters in their family law case, including divorce, equalization, and support.

The respondent husband brought a cross-motion to stay the divorce claim, arguing that he had already commenced a divorce proceeding in Poland and that Poland was the more appropriate forum.

The court found that it had jurisdiction under the Divorce Act and Family Law Act.

Applying the Van Breda framework, the court held that the husband failed to show that Poland was a clearly more appropriate forum, noting that the parties resided in Ontario throughout their marriage, the property issues were already conceded to Ontario, and a Polish divorce could prejudice the wife's spousal support claims.

The husband's motion was dismissed and the wife's motion was granted.

Prospective adoptive parents sought custody of a newborn child whom they had taken into their care shortly after birth in Nunavut pursuant to an informal arrangement with the biological parents.

The court raised serious concerns about the irregular process, including lack of personal service, absence of corroborating evidence confirming the biological parents’ identities, incomplete police record checks, and insufficient information regarding a prior child protection investigation.

The court also noted potential legal issues under the Child and Family Services Act regarding private placement of a child for adoption by non‑relatives.

Given the child was already residing in Ontario and decisions were required for the child’s care, the court granted interim interim custody on a without prejudice basis.

The applicants were ordered to obtain additional documentation, effect proper personal service on the respondents, and provide corroborating evidence from the Children’s Aid Society before the matter could proceed.

Following an interim family law motion regarding custody and access, the court determined costs.

The applicant sought over $32,000 in full recovery costs after obtaining an interim joint custody order with a parenting schedule primarily placing the children with her and permitting one child to attend school in a new location.

The respondent argued for no costs due to divided success.

The court held the applicant achieved some success and was presumptively entitled to costs, but rejected allegations of bad faith and found both parties contributed to excessive costs through voluminous affidavit material and litigation conduct.

Applying the principle of reasonableness and proportionality under the Family Law Rules, the court found the amount claimed to be disproportionate and reduced costs substantially.

The defendants moved for an order requiring the plaintiff in a motor vehicle accident action to attend additional defence medical examinations by a physiatrist and a psychiatrist.

The defendants argued the plaintiff’s condition had changed and that trial fairness required further examinations because the plaintiff’s experts had examined her multiple times.

The court reviewed the governing principles under s. 105 of the Courts of Justice Act and Rules 33.01–33.02 of the Rules of Civil Procedure regarding further defence medical examinations.

The court held that no material change in the plaintiff’s condition had been demonstrated and that the request largely amounted to an attempt to corroborate existing defence opinions.

Trial fairness did not require additional examinations, and the defendants had not provided sufficient evidentiary foundation to justify the order.

Following a three‑day family law trial concerning variation of spousal and child support, the court addressed costs.

The respondent at trial had successfully obtained increased spousal support and support arrears based on a substantial increase in the applicant’s income since the divorce judgment.

The court considered settlement offers made under the Family Law Rules and determined that although they did not trigger automatic cost consequences, they demonstrated reasonable efforts to settle.

Applying the presumption that the successful party is entitled to costs and considering the factors under r. 24(11), the court awarded partial indemnity costs notwithstanding the absence of detailed lawyers’ accounts.

Costs were fixed at $12,000 and declared enforceable as a support order through the Family Responsibility Office.

The applicant estate trustee brought a motion to dismiss the family law proceeding for delay.

The respondent surviving spouse brought a cross-motion to suspend the administration of the estate to preserve assets for a potential equalization payment.

The court dismissed the applicant's request for a trial of an issue, finding the motion straightforward.

The court dismissed the motion for delay, noting that both parties contributed to the delay and there was no substantial risk to a fair trial.

The court granted the respondent's motion, ordering the estate to retain $2.2 million to secure her potential equalization claim, which included a potential interest in a $6.6 million settlement from a Florida lawsuit.

The applicant brought a motion for interim child and spousal support.

The respondent had lost his employment and started unsuccessful business ventures, including purchasing an expensive motor home.

The court found the respondent intentionally under-employed and imputed an income of $90,000 based on his earning capacity.

The court also imputed income to the applicant based on full-time employment.

Interim child support of $1,293 per month and spousal support of $500 per month were ordered, with the respondent's equity in the matrimonial home standing as security.

The parties brought cross-motions for an interim parenting schedule, and the respondent sought interim exclusive possession of the matrimonial home.

The court dismissed the respondent's motion for exclusive possession, finding insufficient evidence that it was in the children's best interests to remove the applicant from the home, and ordered the home listed for sale.

On the parenting issues, the court ordered interim interim joint custody with primary residence to the respondent and a generous parenting schedule for the applicant, noting the respondent's historical role as the primary caregiver.

The applicant brought a motion seeking dismissal of the respondent’s motion to change a final family law order due to the respondent’s persistent failure to comply with financial disclosure obligations.

The respondent sought a reduction of child support based on alleged reduced income but failed to produce tax returns, notices of assessment, or corporate financial statements despite a court order requiring disclosure.

Applying Family Law Rules 1(8) and 14(23), the court found the respondent had a long history of non‑compliance and provided inadequate explanations for failing to produce critical financial documents.

The court held the respondent had not met the onus of showing why the sanction under rule 14(23) should not apply.

The motion to change was dismissed, though the court confirmed termination of support for two adult children and fixed spousal support at zero.

A law firm brought motions in two related civil actions seeking to be removed as solicitors of record for their former clients and requesting costs personally against another lawyer under rule 57.07 of the Rules of Civil Procedure.

The moving firm alleged that the other lawyer had undertaken to file notices of change of lawyer and failed to do so, thereby forcing the motions.

The court found that no undertaking had been given regarding one of the actions and that the undertaking in the other action was conditional upon file review and further information.

The court held that the evidence did not establish that the lawyer caused costs to be incurred without reasonable cause or through undue delay or negligence.

Applying the caution required before ordering costs personally against counsel, the court declined to impose personal liability.