V. Jennifer Mackinnon

Following a four‑day family law trial concerning equalization of net family property and the sale of the matrimonial home, the successful party sought costs.

The court found that the applicant had clearly succeeded on the primary issue of equalization and had obtained the same equalization payment previously offered to settle.

The respondent had not advanced a clear or realistic settlement proposal and pursued a lengthy trial over a relatively modest amount.

Although the applicant achieved only partial success regarding the precise terms governing the sale of the matrimonial home, the court held that the overall result aligned more closely with the applicant’s position.

Costs were therefore awarded to the applicant in the amount claimed.

Following a 13‑day family law trial involving custody, residential arrangements for children, and retroactive child and spousal support, both parties sought costs.

The court found the applicant to be the successful party after obtaining sole custody, defeating the respondent’s claim for equal parenting time, and securing retroactive support exceeding $140,000 based on a higher imputed income.

The respondent argued for divided success based on various factual findings and limited access adjustments, but the court rejected that characterization.

Litigation conduct issues were raised against both parties, including delay, breaches of communication restrictions, and difficulties caused by the respondent’s inadequate financial disclosure.

The court awarded the applicant generous partial indemnity costs but declined full indemnity due to procedural irregularities and aspects of the applicant’s conduct.

Following a family law motion, both parties sought costs.

The court considered that the respondent was largely successful on the primary contested issue concerning the continued involvement of the Office of the Children's Lawyer, as the applicant’s request to remove or replace that office was rejected.

However, the applicant had made a reasonable offer to settle addressing several issues that were ultimately resolved without court determination, while the respondent made no offer.

Balancing these factors under the Family Law Rules and the policy encouraging settlement offers, the court determined that neither party should receive costs.

The decision reflects the discretionary balancing of litigation success against settlement conduct in family proceedings.

Following a 15‑day custody and access trial, the successful party sought $493,000 in costs on a partial indemnity basis to the date of a settlement offer and full indemnity thereafter.

The court analyzed success at trial, the parties’ settlement offers, litigation conduct, and reasonableness of the claimed fees under the Family Law Rules.

The court found the moving party clearly more successful and that his settlement offers were more closely aligned with the trial outcome than the opposing party’s offers.

However, the court reduced the recovery due to unreasonable conduct, including surreptitious recording of the opposing party during disputes involving the children.

Costs were fixed at $345,000 on a partial recovery basis and ordered payable within 90 days.

The applicant filed a police misconduct complaint arising from a stop and search during the G20 summit.

The OIPRD investigated and directed the Chief of Police to hold a disciplinary hearing.

Because more than six months had passed, the Chief applied to the Police Services Board for an extension of time.

The Board denied the extension without notifying the applicant, allowing him to make submissions, or providing reasons for its decision.

On judicial review, the Divisional Court quashed the Board's decision, holding that the Board breached its duty of procedural fairness by failing to provide the applicant with notice, an opportunity to be heard, and reasons for its decision.

The defendants brought a motion to set aside an ex parte Mareva injunction restraining them from dealing with their assets in connection with allegations of fraud and unjust enrichment.

The plaintiff alleged that the defendant fraudulently induced the transfer of $750,000 USD to a numbered company controlled by his common-law partner and that the funds were used for personal expenses and property renovations.

The court found a strong prima facie case of fraud against the individual defendant and unjust enrichment against the other defendant, and held there was a real risk of asset dissipation.

The court rejected arguments that the plaintiff failed to make full and frank disclosure on the ex parte motion and declined to require the plaintiff to post security for its undertaking in damages.

The Mareva injunction was continued and the defendants’ motions were dismissed.

Mid-trial evidentiary ruling in a family law custody and access dispute concerning the admissibility of a custody and access assessment prepared in a prior proceeding between the same parties.

The respondent argued the report was inadmissible under s. 30 of the Children's Law Reform Act.

The court held that although the report could not be admitted automatically under s. 30(9), that provision does not displace the general law of evidence.

The assessor was not prohibited from testifying and may provide factual or opinion evidence if common law expert evidence requirements are met.

However, the report itself was ordered removed from the trial record and may only be tendered when the witness testifies.

A former spouse brought a motion seeking interim and permanent spousal support more than two decades after separation and many years after divorce.

The applicant was disabled, dependent on social assistance, and unable to work, while the respondent was retired with modest pension income and had reorganized his finances following remarriage.

The court held that delay in pursuing support does not bar relief under the Divorce Act, but extreme and unexplained delay may significantly affect entitlement and quantum.

Although the applicant established need and entitlement due to disability following a long marriage, the court found the delay unreasonable and reduced support substantially below the Spousal Support Advisory Guidelines.

Interim spousal support of $300 per month was ordered with no retroactivity and no indexation.

The applicant sought reimbursement of defence costs and a declaration that the respondent insurers owed a duty to defend an underlying action alleging damages from an oil spill at a residence.

The dispute turned on the interpretation of a contractors’ pollution liability policy requiring that covered operations commence on or after the retroactive date to trigger coverage.

The court held that the policy language unambiguously tied coverage to the timing of the insured’s operations rather than the pollution incident.

Because the alleged operations occurred before the retroactive date, the insured failed to establish that the claim fell within the grant of coverage.

The application was dismissed and the insurers were found to have no duty to defend.

The defendants brought a Rule 21 motion to strike the plaintiff’s statement of claim alleging entitlement to a survivor’s pension following the death of her separated spouse.

The court considered the Pension Benefits Act provisions governing mandatory joint and survivor pensions and the effect of spouses living separate and apart at the relevant time.

It held that because the spouses were separated when the first pension payment became due, the statutory requirement for a joint and survivor pension did not apply and the guardian of property was entitled to elect a single life annuity for the member’s benefit.

No duty of care was owed by the Public Guardian and Trustee to the separated spouse, and the pleadings disclosed no reasonable cause of action.

The statement of claim was struck, but leave was granted to deliver a fresh claim against the pension administrator only if based on a possible mandatory plan provision requiring a joint and survivor annuity.

The Children's Aid Society sought an order for Crown wardship for the purpose of adoption for two young children.

The mother and maternal grandparents proposed competing plans for the children's return or placement.

The court found the mother had not demonstrated the necessary stability, having struggled with substance abuse and inconsistent access.

The grandparents' plan was also rejected due to their inability to set boundaries with the mother and physical limitations in managing the children.

The court ordered Crown wardship for both children but granted the grandparents supervised access, finding it would not impair future adoption opportunities.

The defendant appealed a Master's order granting the plaintiff leave to amend its Statement of Claim in an action for negligence and breach of contract arising from a sewage system upgrade project.

The defendant argued the amendments raised new, time-barred causes of action.

The Divisional Court dismissed the appeal, upholding the Master's findings that most amendments merely particularized the existing claims based on the same factual matrix.

For the amendments that did raise a new cause of action, the court agreed with the Master that the issue of discoverability was genuinely in dispute and should be resolved at trial, allowing the amendments subject to a limitation defence.

The plaintiff law firm appealed a Master's order dismissing its action for delay at a status hearing under Rule 48.14.

The plaintiff argued the Master erred by failing to balance the preference for determining cases on their merits against the need to discourage delay, and by rejecting its explanation that the file 'fell through the cracks'.

The Divisional Court dismissed the appeal, holding that recent appellate jurisprudence establishes the primary focus at a status hearing is whether the plaintiff has an acceptable explanation for the delay.

The Master applied the correct legal test and made no palpable or overriding error of fact in finding the plaintiff abdicated its responsibility to prosecute the action.

The moving party sought leave to appeal a prior order certifying a class proceeding under the Class Proceedings Act.

It argued that the certification judge erred in finding the pleadings disclosed a cause of action and in determining that common issues existed, particularly regarding an alleged duty of a custodial trustee to warn investors about an investment scheme.

The court held that the certification judge properly applied the test under the Class Proceedings Act and that it was not plain and obvious the claim had no chance of success.

The alleged “super-added duty” was properly characterized as part of the broader tort duty of care that could arise depending on factual findings at trial.

The court also rejected arguments that the certification process or authorities relied upon created conflicting jurisprudence warranting appellate review.

A custody and access trial concerning a 10‑year‑old child where both parents sought sole custody and the father alternatively sought joint custody.

The court found the mother had historically managed the child’s medical and educational needs and that the father failed to cooperate with an Office of the Children’s Lawyer clinical investigation, failed to comply with prior court orders, and frequently breached access return times resulting in excessive school absences.

Joint custody was rejected due to the parties’ inability to communicate and ongoing conflict.

Sole custody and primary residence were granted to the mother, with the father receiving modified access that removed overnight visits on school nights.

Child support of $100 per month, including section 7 contributions, was ordered and costs of $12,000 were awarded against the father.

Following trial and earlier reasons on costs, the defendants by counterclaim brought a motion seeking entry of judgment reflecting the court’s costs rulings and directing payment of their costs by the opposing party’s insurer to their own insurer.

The responding party brought a preliminary motion to strike an affidavit filed in support of the motion.

The court dismissed the motion to strike, holding the affidavit was relevant to the issue of payment of costs.

The court further corrected an accidental slip in earlier reasons concerning costs and amended the costs award to clarify that only one plaintiff was liable for partial indemnity costs.

The court ordered that costs awarded to the successful defendants by counterclaim be paid by the opposing party’s insurer directly to their insurer, with post‑judgment interest.

Following a nine‑day trial in which the plaintiffs’ action was dismissed, the defendants and the third party sought costs.

The defendants requested substantial indemnity costs based largely on allegations of fraud advanced against them and an unaccepted settlement offer made in related litigation.

The court held that the offer made in the separate main action was irrelevant to the costs of the present case and declined to award recovery of unrecovered costs from that action.

However, because the plaintiffs advanced serious allegations akin to fraud that were ultimately unfounded, the court awarded the defendants solicitor‑and‑client scale costs.

The third party was awarded partial indemnity costs to the date of her offer to settle and substantial indemnity costs thereafter, reflecting that her offer was more favourable than the result obtained at trial.

The defendants brought a motion under Rule 21.01(3)(d) to dismiss or stay an action alleging breach of trust, bad faith, and unjust enrichment arising from the termination of a real estate Agreement of Purchase and Sale.

The plaintiffs had previously brought an application concerning the same agreement, in which the court determined after trial that the vendor lawfully terminated the agreement due to the purchasers’ default.

The court held that the present action was fundamentally premised on the allegation that the termination was wrongful, an issue already adjudicated in the earlier proceeding.

Applying the doctrines of res judicata and abuse of process, the court found the action sought to relitigate matters previously determined and was therefore frivolous and vexatious.

The action was dismissed in its entirety.

Following a family law trial involving child support, spousal support, and net family property equalization, the parties were unable to agree on costs.

Applying Rule 24 of the Family Law Rules, the court assessed which party achieved greater success and evaluated the parties’ settlement offers and litigation conduct.

The applicant obtained more favourable results on child support and s.7 expenses, while spousal support was not ordered due to her inability to pay.

Although success on property equalization was somewhat mixed, the applicant’s offer to settle was substantially closer to the trial outcome and the respondent’s offer was found unreasonable, particularly given his failure to propose any child support.

The court awarded the applicant partial indemnity costs.

Following a family law trial concerning spousal support and contractual issues, the successful party sought costs after serving an Offer to Settle that was more favourable to the opposing party than the ultimate trial award.

The court considered Family Law Rule 18(14) and the time‑computation provisions of Family Law Rule 3(1) in determining whether the offer was served at least seven days before trial.

Applying the rule for counting days and drawing guidance from Rule 3.01 of the Rules of Civil Procedure, the court held the offer satisfied the timing requirement.

Even if it had not, the court would exercise discretion under Family Law Rule 18(16) to award elevated costs given the significant disparity between the offer and the trial outcome.

The respondent was awarded $48,500 in costs inclusive of fees, disbursements, and HST.