Wendy M. Matheson

Following a multi-day family trial concerning custody of a child, the court had awarded custody to the father.

The father sought partial indemnity costs of approximately $25,000 for the trial.

The court considered the importance of the custody issue, the parties’ financial disparity, the conduct of the litigation, and a technically non‑compliant offer to settle under the Family Law Rules.

While the offer did not strictly comply with Rule 18(14), it could still be considered under Rule 18(16) in determining costs.

The court concluded that the father had been mostly successful and was entitled to recover his trial costs.

The applicant brought a motion to change an existing family court order governing parenting time.

The parties resolved most issues of access through minutes of settlement but disputed whether the respondent should have mid‑week access during the school year.

After hearing submissions, the court ordered that the respondent have Tuesday after‑school access until 8 p.m., with responsibility for school pickup and return to the applicant’s residence.

The court also required advance notice by text message if the respondent could not exercise the access.

Costs submissions were directed to be filed following the decision.

The applicant father brought a motion to change a final order to transfer the primary residence of the parties' 10-year-old child to him.

The motion was prompted by the child expressing a strong desire to live with the applicant due to ongoing conflict and turmoil in the respondent mother's home, which included involvement by the Children's Aid Society and police related to the respondent's abusive partner.

The court found a material change in circumstances and applied the best interests of the child factors under section 24 of the Children's Law Reform Act.

Relying on the child's views and preferences, the instability in the respondent's home, and the applicant's stable plan, the court granted the motion and ordered that the child's primary residence be changed to the applicant.

The applicant sought rectification of a will after the drafting solicitor inadvertently failed to include a bequest of the testator’s residence to the applicant despite receiving explicit instructions to do so.

Evidence included affidavits from the applicant and the drafting solicitor confirming the omission resulted from clerical error during the preparation of the final will.

The court reviewed the equitable doctrine of rectification and the circumstances in which courts may correct drafting mistakes where the testator’s instructions were not implemented.

Relying on Ontario authorities permitting rectification where solicitor error prevents a will from reflecting the testator’s intention, the court found the omission clearly established and unchallenged.

The will was rectified to include the bequest of the residence to the applicant.

The applicant and respondent separated after a long relationship involving chicken farming.

The applicant claimed that a barn and chicken quotas registered in the respondent's name were held in trust for him or that she was unjustly enriched.

The court found no evidence of an express trust and no unjust enrichment, as the respondent had financed and worked for her own assets.

The court ordered the applicant to pay an equalization payment of $55,798.83, granted joint custody of their child with primary residence to the respondent, and ordered the applicant to pay $600 per month in child support.

The applicant sought enforcement and security for spousal support obligations after the respondent repeatedly failed to comply with court-ordered financial disclosure and support payments in protracted family litigation.

The record demonstrated a pattern of nondisclosure, including failure to reveal income sources, motor vehicle accident claims, and billing practices, despite numerous prior orders requiring disclosure.

Relying on the court’s authority under the Courts of Justice Act and s. 34 of the Family Law Act, and applying principles from appellate authority governing vesting orders, the court found that the respondent’s conduct demonstrated that support obligations were unlikely to be complied with absent intrusive enforcement measures.

The court struck the respondent’s pleadings for non-compliance and granted a vesting and security order over the matrimonial home to secure spousal support.

Additional disclosure and enforcement orders were made, along with costs against the respondent.

Following a jury trial arising from a motor vehicle accident, the court determined the appropriate costs consequences where the plaintiffs obtained a judgment significantly less favourable than the defendant’s Rule 49 offer to settle.

The plaintiffs recovered limited damages after the statutory deductible reduced the award.

The court considered whether Rule 76 simplified procedure should have been used and concluded it was reasonable for the plaintiffs to proceed under the ordinary procedure due to the complexity of the case and expert evidence.

Applying Rule 49.10(2), the plaintiffs were awarded partial indemnity costs up to the date of the defendant’s offer, and the defendant was awarded partial indemnity costs thereafter.

Substantial indemnity costs were refused because there was no reprehensible conduct.

The applicant shareholder brought a motion under s.248 of the Business Corporations Act seeking relief arising from alleged oppressive conduct and persistent non-compliance with prior court orders by the respondent shareholder and director of two corporations.

The court reviewed the history of litigation, including earlier orders requiring equalization of shareholder investment and corporate governance measures.

The evidence demonstrated that the respondent had ignored multiple court orders, failed to produce required financial disclosure, and engaged in conduct undermining the corporations’ operations.

Applying the oppression remedy principles under the OBCA, the court exercised its broad discretion to rectify the situation.

The respondent was removed as director and officer, the applicant was vested with sole control of the corporations subject to accounting obligations, and additional financial and disclosure orders were imposed.

In a child protection proceeding under the Child and Family Services Act, the moving party sought interim supervised access to a child pending the hearing of an appeal from a Crown wardship order.

The motion also requested leave to file fresh affidavit evidence.

While the additional affidavits were not opposed, the court declined to vary the existing order denying access.

Applying s. 59(2.1) of the Act and relevant appellate authorities, the court emphasized that access to a Crown ward requires proof that the relationship is both beneficial and meaningful to the child and will not impair adoption prospects.

Given the impending appeal and the risk of disrupting the child’s welfare shortly before the appeal hearing, the court held it was preferable to leave the matter to the appeal judge.

Following dismissal of the plaintiff’s employment-related claim under the Simplified Procedure, the court determined costs.

The defendant sought costs based on the plaintiff’s litigation conduct, including refusal to consent to a pleading amendment, late service of materials, failure to comply with procedural timelines, and conduct that caused adjournment of the trial.

The court considered the discretion under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, along with the parties’ settlement offers under Rule 49.

The court found the plaintiff’s conduct lengthened the proceedings and warranted costs above partial indemnity.

Costs were fixed in favour of the defendant in the amount of $38,000 inclusive of disbursements and HST.

The court determined the issue of costs in a long-running family law proceeding involving access to children after the respondent’s pleadings had been struck.

The respondent relied on Rule 24(10) of the Family Law Rules, arguing costs should have been decided promptly after each step.

The court found that costs had been adjourned to allow the self‑represented respondent an opportunity to retain counsel and that no earlier opportunity existed to assess them.

Reviewing the bill of costs and the procedural history, the court concluded the matter was not complex but had been prolonged by the respondent’s conduct.

Costs were awarded to the applicant in the amount of $8,500 inclusive of disbursements and HST.

The defendant Ministry of the Environment brought a motion for leave to appeal an order dismissing its Rule 21 motion.

The underlying action involved a corporate plaintiff alleging that the Ministry's investigation, press releases, and threats of core drilling violated its rights under sections 7, 8, and 11 of the Charter, despite no charges being laid.

The court granted leave to appeal, finding that there were conflicting decisions regarding whether a corporation could assert these Charter rights in the absence of penal proceedings, and that the issues raised were of sufficient importance to warrant appellate review.