V. Jennifer Mackinnon

A high-conflict custody trial concerning three teenage children where each parent alleged parental alienation by the other.

The applicant mother sought sole custody of all children and suspension of the father’s access pending therapeutic intervention.

The respondent father sought sole custody of two children and joint custody of the third.

The court accepted the assessor’s opinion that the case was a “mixed” alienation scenario involving problematic parenting behaviour by both parties rather than pure parental alienation by one parent.

Given the children’s ages, experiences with each parent, and entrenched conflict, the court declined to change residential custody as requested and instead structured a divided custody arrangement combined with extensive therapeutic intervention and detailed parenting orders designed to repair parent‑child and sibling relationships.

The respondent sought to set aside a marriage contract and subsequent separation agreement under s. 56(4) of the Family Law Act, or alternatively obtain spousal support under s. 15.2 of the Divorce Act despite contractual waivers.

The court found no material financial non-disclosure but concluded that the spousal support waivers in both agreements were obtained through undue influence and misrepresentation and were improvident in light of the parties’ circumstances.

The property provisions of the agreements were upheld, but the spousal support waivers were set aside.

Applying the Miglin framework, the court determined the agreements did not substantially comply with the objectives of the Divorce Act.

The respondent was awarded lump-sum and ongoing periodic spousal support.

Following a successful summary judgment motion dismissing the action, the defendant sought costs of both the motion and the underlying proceeding.

The plaintiff argued that costs should be limited because the defendant delayed bringing the summary judgment motion until shortly before trial despite participating in discovery and other litigation steps for years.

The court rejected this argument, finding the defendant acted reasonably in defending the claim and that evolving jurisprudence after amendments to Rule 20 justified bringing the motion after discoveries were completed.

Substantial indemnity costs were refused because the defendant’s settlement offers did not trigger Rule 49 consequences.

Partial indemnity costs were fixed by the court, including fees and disbursements, payable forthwith.

The plaintiffs purchased a commercial plaza that was contaminated with PCE from a former dry cleaning business.

They sued the vendor for fraudulent misrepresentation, alleging the vendor concealed environmental reports showing the contamination.

They also sued their real estate lawyer for professional negligence, alleging she failed to obtain the reports or properly advise them regarding the environmental condition.

The court dismissed the action against all defendants.

The court found as a fact that the vendor had provided the environmental reports to the purchaser before the environmental condition was waived.

The court also found that the lawyer met the standard of care, as the purchaser had taken responsibility for satisfying the environmental condition and had instructed her to waive it after receiving the reports.

A condominium developer sought declarations that purchasers of two commercial hotel condominium units were bound by their agreements of purchase and sale and that their notices of rescission were invalid.

The purchasers argued that a revised disclosure statement contained several undisclosed material changes, including cost allocation shifts, lack of PATH access, kitchen configuration changes, ownership changes in certain units, and a reduction in the building’s overall height.

Applying the objective test for material change under the Condominium Act, the court found that none of the alleged changes—individually or cumulatively—would have caused a reasonable purchaser to rescind the transaction.

The developer established that the changes did not materially affect the investment value or income potential of the units.

The court therefore held that the purchasers’ rescission notices were ineffective and that the agreements remained binding.

The defendants brought a motion for summary judgment dismissing claims arising from the premature deterioration of pine roof shingles installed on the plaintiff’s home.

The plaintiff alleged breach of contractual warranty, breach of statutory warranties under the Sale of Goods Act, and negligent misrepresentation relating to representations that the roof would last 50 years.

The court found the plaintiff had discovered the alleged defects and the basis of her claims by November 2005, yet did not commence the action until March 2008.

Applying the two‑year limitation period under the Limitations Act, 2002, the court held the claims were statute‑barred.

The court also concluded there was no evidence the retailer provided a contractual warranty or representation guaranteeing the shingles for 50 years.

During an ongoing family law trial, the applicant sought to call two witnesses in reply concerning a child's mental health events and communications that emerged from late-produced emails.

The court considered the principles governing reply evidence, including whether the evidence addressed new matters arising from the defence or whether it constituted impermissible splitting of a party’s case.

The court held that limited reply evidence from the child’s therapist was permissible regarding specific events in June–July 2011 and related emails that gained new significance during the defence case.

However, broader inquiries into the child’s ongoing mental health and alleged information‑withholding could have been addressed in the applicant’s case in chief and were therefore excluded.

The proposed testimony of the guidance counsellor was not proper reply evidence, and the applicant’s request to reopen her case in chief was denied.

During an ongoing family law trial, the respondent sought production of a therapist’s clinical file after the applicant decided not to call the therapist as a witness despite earlier representations that he would testify.

The parties had also exchanged mutual undertakings to produce doctors’ files.

The court found that the respondent had relied on the applicant’s repeated statements that the therapist would testify and that the file would be produced.

Drawing on principles from R. v. Jolivet regarding fairness when litigation strategy changes mid‑trial, the court concluded that withholding the file would create unfairness.

The applicant was ordered to obtain and produce the therapist’s file so the respondent could determine whether to call the therapist as a witness.

The applicant sought costs following a contested family law motion, requesting full recovery costs of $33,539 or alternatively partial recovery costs of $22,136.

The respondent argued that a clause in a Partial Interim Separation Agreement barred any costs award or, alternatively, that costs should be limited to a substantially lower amount.

The court held that the contractual clause requiring each party to pay their own legal and professional fees did not waive the applicant’s right to seek a judicial award of costs.

Finding the applicant to be the successful party and noting that an offer to settle engaged full recovery entitlement for part of the proceeding, the court reduced the claimed amounts due to excessive hourly rates, duplication of work, and unnecessary attendance by multiple counsel.

Costs were fixed on an all‑inclusive basis.

The applicant sought spousal support under s. 15.2 of the Divorce Act despite a prior separation agreement providing for mutual spousal support releases in exchange for her receiving the respondent’s share of condominium equity.

Applying the two‑stage framework in Miglin v. Miglin, the court accepted that the agreement was properly negotiated but considered whether subsequent circumstances justified departing from it.

The court found that the applicant’s severe and chronic mental health deterioration after the agreement represented a significant departure from the circumstances reasonably contemplated when the agreement was executed, undermining the assumption that she would remain self‑sufficient.

Although the agreement retained weight given the objectives of finality and certainty, strict enforcement would not adequately address the applicant’s economic hardship.

Considering the Spousal Support Advisory Guidelines and the lump sum already received, the court ordered an additional lump sum spousal support payment.

The respondent moved to bifurcate a family law trial to determine custody, support, and the validity of a marriage contract before addressing equalization of net family property.

The applicant opposed and sought extensive financial disclosure, arguing the issues of property division and spousal support were interrelated.

The court held that the validity of the marriage contract and spousal support analysis under Miglin require knowledge of the parties’ financial positions at separation.

Because property equalization must precede spousal support and the issues were intertwined, bifurcation would risk prejudice and inefficiency.

The motion for bifurcation was dismissed and the respondent was ordered to provide full financial disclosure regarding assets and liabilities at separation.

In a family law proceeding involving allegations of parental alienation, the court conducted a voir dire to determine the admissibility of proposed expert evidence from a developmental psychologist retained to provide a generic report on parental alienation theory.

Applying the admissibility framework from R. v. Mohan and the two‑stage analysis articulated in R. v. Abbey, the court considered necessity, reliability, and the balance between probative value and potential prejudice.

The court concluded that limited portions of the expert’s report explaining common alienating strategies and behaviours of alienated children would assist the trier of fact.

However, other portions—including general discussions of prevalence, cult analogies, therapeutic practices, and proposed remedial solutions—were excluded as lacking sufficient relevance or probative value.

The expert was also prohibited from answering fact‑based hypothetical questions because the retainer was limited to providing generic educational evidence rather than case‑specific opinions.

During a custody and access trial, the applicant brought a motion seeking to redact portions of a custody assessor’s notes, records, and report that referenced communications from a prior closed mediation.

The applicant argued that mediation privilege had not been clearly waived when she consented to the assessor obtaining information from the mediator.

The court found that the applicant knowingly signed a release permitting disclosure to the assessor and understood that information provided to the assessor could be disclosed in court under the assessor’s retainer terms.

The court further held that the applicant impliedly waived mediation privilege by later providing submissions discussing the mediation for the assessor’s consideration.

Given the parties’ consent and the potential prejudice to the integrity of the assessment if extensive redactions were allowed, the motion to redact was denied.

Following a seven‑day family law trial concerning custody, relocation, child support, and access, both parties sought full recovery costs.

The court found that success at trial was clearly divided: the applicant obtained sole custody, income imputation, and child support, but failed on her late‑raised request to relocate the child to Nova Scotia, while the respondent succeeded in maintaining the child’s residence in Ontario and obtaining a graduated access regime but failed on other financial and custody claims.

The court also found litigation misconduct by the respondent, including failure to pay child support despite sufficient income and inadequate financial disclosure.

However, the applicant’s late and inadequately supported mobility claim was central to the trial and undermined her entitlement to costs.

Balancing the divided success and litigation conduct, the court declined to award costs to either party.

Following a personal injury jury trial arising from a motor vehicle accident, the court determined costs after the parties failed to agree.

The jury awarded modest damages, but the plaintiff’s general damages and Family Law Act damages were unrecoverable due to the Insurance Act threshold.

The plaintiffs obtained judgment less favourable than the defendant’s Rule 49 offer to settle, triggering cost consequences under Rule 49.10(2).

The court awarded the plaintiffs partial indemnity costs up to the date of the defendant’s offer and awarded the defendant substantial partial indemnity costs thereafter.

Separate costs were also awarded to the defendants-by-counterclaim who successfully defended a Negligence Act contribution and indemnity claim.

The appellant appealed convictions and sentence imposed by the Ontario Court of Justice for three counts of sexual assault.

The appellant argued that the trial judge failed to properly apply the burden of proof and presumption of innocence, misapprehended the evidence, and applied a different standard of scrutiny to Crown and defence witnesses.

The court held that the trial judge properly applied the principles in R. v. (W.D.) and was entitled to accept the complainant’s evidence and reject the accused’s evidence.

No material misapprehension of evidence or error in credibility assessment was established.

The court also found no error in the nine‑month concurrent sentences imposed within the joint submission range.

Following a family law trial concerning spousal and child support obligations, the parties were unable to agree on the calculation of a support overpayment and on costs.

The court determined that the payor had overpaid support by $233 per month for 15 months following the trial order, totaling $3,495, and ordered repayment unless the parties agreed to resolve the issue through income tax filings.

On the issue of costs, the court applied Rule 24 of the Family Law Rules and concluded that the respondent wife was the more successful litigant, particularly regarding the continuation of spousal support despite the husband's request for retroactive termination.

After considering the parties’ settlement offers, litigation conduct, complexity of the matter, and the reasonableness of counsel’s fees and disbursements, the court fixed costs on a partial indemnity basis.

The respondent wife was awarded total costs of $23,695.16 payable forthwith.

The court determined costs following the dismissal of a respondent’s motion seeking an order that funds be paid into court pending determination of his claim.

Although the applicant was successful on the motion and sought approximately $17,000 in costs, the court found that her conduct regarding disclosure contributed to the procedural complications and delays.

The court noted that significant disclosure should have been provided voluntarily and that the applicant had incorrectly denied receiving certain disclosure.

Considering the circumstances, the court declined to award full indemnity costs and fixed costs at $6,000 to the applicant and $500 to her mother.

The court also cautioned counsel that written submissions must always be shared with opposing counsel.

The court determined costs following a family law motion and cross‑motion concerning child and spousal support and the potential sale of the matrimonial home.

The applicant was found to be the successful party, having obtained support orders and resisted the respondent’s request for sale of the home, although the respondent achieved limited success on certain expense issues.

The court considered the parties’ offers to settle and found the applicant’s offer more closely aligned with the ultimate outcome.

While the applicant sought $18,500 in costs, the court found the hourly rate and some claimed work excessive in light of the issues and the reasonable expectations of the opposing party.

Costs were fixed at $15,000 on a partial recovery, all‑inclusive basis payable within 60 days.

The applicant mother sought sole custody, permission to relocate to Nova Scotia with the parties' two-year-old child, and child support.

The respondent father sought joint custody, opposed the relocation, requested increased access, and claimed undue hardship regarding child support.

The court awarded sole custody to the mother, finding a lack of cooperation and trust between the parents.

The relocation request was denied as the mother's plan was hastily formed and lacked concrete employment prospects, while the child's relationship with the father needed to be facilitated in Ottawa.

The court ordered a graduated access schedule for the father, imputed income to him for child support purposes, and dismissed his claim for undue hardship.