2012/07/30

The Canadian Abridgment eDigests - Family Law - OntarioFAM.II.3.dThe Canadian Abridgment eDigests -- Family Law - Ontario2012-31July 30, 2012Subject Title: Family lawClassification Number: II.3.dMarriage -- Validity of marriage -- MiscellaneousParties were married in Islamic religious ceremony in either 2002 or 2003 -- Parties did not obtainprovincial marriage licence -- Parties lived together as couple until their separation in 2010 -- Onseparation, husband applied for relief including equalization of property and reimbursement of support --Husband was directed to bring motion to determine validity of marriage for purposes of separation --Husband moved for declaration that marriage was invalid -- Motion dismissed -- Summary judgment grantedto wife -- Although there was no licence, marriage was to be considered valid if parties intended to bemarried under provincial law in good faith -- Marriage was solemnized in good faith, neither party wasprevented from being married and couple lived together after marriage -- Although wife did not know oflegal requirements for marriage in province, she had good faith belief that her marriage was in accordancewith provincial law -- During marriage, couple held joint accounts, travelled together and presented themselvesto others as couple -- Husband listed himself as married on his tax returns -- Intention to be legally marriedwas proven by evidence -- Summary judgment was granted to wife on this issue.Isse v. Said(2012), 2012 CarswellOnt 3623, 2012 ONSC 1829, D.A. BroadJ. (Ont. S.C.J.); additional reasons at (2012), 2012 ONSC 2761, 2012 CarswellOnt 5937, D.A. Broad J. (Ont. S.C.J.) [Ontario]FAM.III.10.hSubject Title: Family lawClassification Number: III.10.hDivision of family property -- Matrimonial home -- Severance of joint tenancyOn her death in 2004 testator left residue of her estate to her two grown children and appointedestranged husband as executor -- Related proceedings found that plaintiff was testator's common law husbandand testator had legal obligation to provide support upon her death -- Prior to testator's death she owned tworeal estate investments in joint tenancy with estranged husband -- Common law spouse husbandapplication seeking relief under Succession Law Reform Act seven months after issuance of certificateof appointment -- Application dismissed -- Section 61(1) of Act creates six-month limitation period -- Ifapplication is brought outside limitation period, maximum exposure of estate is portion of residue of estatenot distributed when application was commenced -- Evidence did not support common law husband's positionthat joint tenancies were severed prior to testator's death and their value constituted undistributed residueof estate -- Testator had not acted on her own share with respect to joint tenancies -- Similarly, nomutual agreement existed between testator and estranged husband to sever joint tenancies -- Highfile:///Y|/Corporate%20Marketing/public/Legal%20...%20Files/12-07-30/CanAbr-Family(Ont)-2012-31.htm (1 of 15) [7/30/2012 1:58:28 PM]

The Canadian Abridgment eDigests - Family Law - Ontariothreshold existed to show joint tenancies were severed through conduct of testator or estranged husband --Mere fact that testator and estranged husband were separated was insufficient to establish severance -- Bothjoint tenants were required to treat their interests in properties as severable -- In liquidating other realestate holdings after their separation testator and estranged husband did not conduct their affairs in wayto suggest joint tenancies had been terminated -- No evidence existed that testator and estranged husbandhad entered negotiations about ownership following their separation -- Testator's efforts to maintainproperties without assistance from estranged husband was not, on its own, evidence of severance --Upon testator's death properties became owned by estranged husband by right of survivorship -- Testator'sinterest in properties did not become part of her estate.Su v. LamJ.) [Ontario](2012), 2012 CarswellOnt 3975, 2012 ONSC 2023, Stinson J. (Ont. S.C.FAM.III.11.aSubject Title: Family lawClassification Number: III.11.aDivision of family property -- Practice and procedure -- General principlesConduct of trial -- Appeal.Wodzynski v. Wodzynski (2012), 2012CarswellOnt 5174, 2012 ONCA 272, Alexandra Hoy J.A., K. Feldman J.A., K. Feldman J.A. for Spence J.A. (Ont.C.A.); affirming (2009), 2009 CarswellOnt 7484, A.R. Rowsell J. (Ont. S.C.J.) [Ontario]FAM.III.11.c.iSubject Title: Family lawClassification Number: III.11.c.iDivision of family property -- Practice and procedure -- Institution of proceedings --General principlesParties were married in 1997, separated in 2002 and obtained divorce in 2006 -- On May 27 2002, husbandpaid wife $50,000 pursuant to separation discussions -- Parties signed handwritten agreement in 2003 consistingof written confirmation of agreement made -- Husband commenced divorce application in 2006 and wifeelected not to defend divorce -- Husband remarried in March 2008 -- In August 2008, wife broughtunsuccessful application against husband for division of net family property and for spousal support --Wife appealed -- Appeal dismissed -- There was firm evidentiary foundation for application judge's findingthat parties had separated before summer of 2002 -- While parties had contact during fall of 2003, they didnot explore possibility of reconciliation -- This finding was fatal to wife's claim that her application forequalization payment was commenced in time -- There was no basis on which to interfere with applicationjudge's decision not to extend six-year limitation period.file:///Y|/Corporate%20Marketing/public/Legal%20...%20Files/12-07-30/CanAbr-Family(Ont)-2012-31.htm (2 of 15) [7/30/2012 1:58:28 PM]

The Canadian Abridgment eDigests - Family Law - OntarioMartynko v. Martynko (2012), 2012 ONCA 395,2012 CarswellOnt 7227, E.A. Cronk J.A., J.C. MacPherson J.A., M. Rosenberg J.A. (Ont. C.A.); affirming(2010), 2010 ONSC 5879, 2010 ONSC 5341, 2010 CarswellOnt 7809, P.B. Hambly J. (Ont. S.C.J.) [Ontario]FAM.IV.1.b.ixSubject Title: Family lawClassification Number: IV.1.b.ixSupport -- Spousal support under Divorce Act and provincial statutes -- Entitlement -- MiscellaneousParties were married in 1997, separated in 2002 and obtained divorce in 2006 -- On May 27 2002, husbandpaid wife $50,000 pursuant to separation discussions -- Parties signed handwritten agreement in 2003 consistingof written confirmation of agreement made -- Husband commenced divorce application in 2006 and wifeelected not to defend divorce -- Husband remarried in March 2008 -- In August 2008, wife broughtunsuccessful application against husband for division of net family property and for spousal support --Wife appealed -- Appeal dismissed -- Wife made no claim for spousal support in divorce proceedings -- Wifefailed to establish any financial hardship or need for spousal support -- Wife's income in years from 2002 to2009 exceeded that of husband.Martynko v. Martynko (2012), 2012 ONCA 395,2012 CarswellOnt 7227, E.A. Cronk J.A., J.C. MacPherson J.A., M. Rosenberg J.A. (Ont. C.A.); affirming(2010), 2010 ONSC 5879, 2010 ONSC 5341, 2010 CarswellOnt 7809, P.B. Hambly J. (Ont. S.C.J.) [Ontario]FAM.IV.1.j.iii.CSubject Title: Family lawClassification Number: IV.1.j.iii.CSupport -- Spousal support under Divorce Act and provincial statutes -- Variation or termination-- Change in financial circumstances -- Change in means of spouseParties made separation agreement in 2003 -- In 2010, husband moved to have child and spousalsupport terminated, but was only successful in having child support terminated -- Husband's appeal wasdismissed -- Husband claimed that he no longer had earning capacity to make meaningful support payments-- Husband moved for variation of agreement to eliminate or reduce spousal support payments -- Motion granted-- Support payments reduced to $800 per month -- Husband's debts and obligations were not unmanageableas claimed, and did not constitute material change in circumstances -- Wife was not able to become selfsufficientand was not living above modest means -- Husband had health problems which limited his ability towork, and he was not working at time of application -- Husband's business background gave him some abilityto earn income despite health problems and problems from dissolution of subsequent marriage -- Husbandhad income imputed to him of $45,000, which was approximately half of average income prior to originalmotion being brought -- Husband was able to pay $800 per month in support as result.file:///Y|/Corporate%20Marketing/public/Legal%20...%20Files/12-07-30/CanAbr-Family(Ont)-2012-31.htm (3 of 15) [7/30/2012 1:58:28 PM]

The Canadian Abridgment eDigests - Family Law - OntarioPopkevich v. Popkevich (2012), 2012CarswellOnt 1398, 2012 ONCJ 32, Juliet C. Baldock J. (Ont. C.J.) [Ontario]FAM.IV.3.b.iiiSubject Title: Family lawClassification Number: IV.3.b.iiiSupport -- Child support under federal and provincial guidelines -- Determination of award amount-- Whether use of child support tables appropriateParties' child support matter proceeded to trial -- At trial, wife was awarded $484 per month for child support-- Husband claimed that trial judge erred in findings that step-daughter was child of marriage and that fulltable amount was needed for biological daughter -- Husband also claimed that trial judge erred in calculatinghis income -- Husband appealed from judgment -- Appeal dismissed -- Stepdaughter was properly child ofmarriage based on credible evidence of mother -- Father had familial relationship with stepdaughter atapplicable time.Lin v. Chen(2012), 2012 CarswellOnt 1088, 2012 ONSC 165, Aston J.,Harvison Young J., Pepall J. (Ont. Div. Ct.); additional reasons to (2011), 2011 ONSC 202, 2011CarswellOnt 15317, H. Sachs J. (Ont. S.C.J.) [Ontario]FAM.IV.3.b.viiiSubject Title: Family lawClassification Number: IV.3.b.viiiSupport -- Child support under federal and provincial guidelines -- Determination of award amount-- Expenses for post-secondary educationParties had brief relationship from which son was born in 1993 -- Father paid child support before consentorder was made in 2001, requiring father to pay $600 per month which included extraordinary expenses --Father had no relationship with child, while mother raised child with another partner from whom shelater separated -- Father paid support regularly as set out in order -- Father's income steadily increased topoint where Child Support Guidelines amounts would have required him to pay more support -- Motherinitially sought extraordinary expenses for son's post-secondary education -- Mother amended her applicationto include claim for retroactive child support from 2008 to 2011 -- Mother applied for relief -- Applicationgranted as to post-secondary expenses and ongoing support -- Application dismissed as to retroactive support-- Amount of support reduced -- Mother was entitled to support for post-secondary expenses, despite lackof relationship between father and son -- Son's behaviour towards father did not entitle father to avoidexpenses for education, as son was not repudiating existing relationship -- Father also was liable to pay $9,000for two years of post-secondary expenses -- Support of $600 per month for nine-month period was creditedto father -- Remaining support was $8,776 which was payable over 15-month period in amount of $585 per month.file:///Y|/Corporate%20Marketing/public/Legal%20...%20Files/12-07-30/CanAbr-Family(Ont)-2012-31.htm (4 of 15) [7/30/2012 1:58:28 PM]

The Canadian Abridgment eDigests - Family Law - OntarioLinkletter v. Fraser(2012), 2012 CarswellOnt1125, 2012 ONSC 436, G.M. Mulligan J. (Ont. S.C.J.); additional reasons at (2012), 2012 ONSC 1462,2012 CarswellOnt 2922, G.M. Mulligan J. (Ont. S.C.J.) [Ontario]FAM.IV.3.c.iSubject Title: Family lawClassification Number: IV.3.c.iSupport -- Child support under federal and provincial guidelines -- Determination of spouse'sannual income -- General principlesParties' child support matter proceeded to trial -- At trial, wife was awarded $484 per month for child support-- Husband claimed that trial judge erred in findings that step-daughter was child of marriage and that fulltable amount was needed for biological daughter -- Husband also claimed that trial judge erred in calculatinghis income -- Husband appealed from judgment -- Appeal dismissed -- Husband raised no issues of law inhis appeal, but only challenged findings of fact -- It was necessary to find clear misapprehension of evidenceor unjust award to overturn findings of fact in support case -- Evidence was properly considered by trial judge inall phases of decision -- Husband's evidence was not credible and trial judge made proper finding as to income.Lin v. Chen(2012), 2012 CarswellOnt 1088, 2012 ONSC 165, Aston J.,Harvison Young J., Pepall J. (Ont. Div. Ct.); additional reasons to (2011), 2011 ONSC 202, 2011CarswellOnt 15317, H. Sachs J. (Ont. S.C.J.) [Ontario]FAM.IV.3.h.viiSubject Title: Family lawClassification Number: IV.3.h.viiSupport -- Child support under federal and provincial guidelines -- Retroactive award --Multiple factors consideredParties had brief relationship from which son was born in 1993 -- Father paid child support before consentorder was made in 2001, requiring father to pay $600 per month which included extraordinary expenses --Father had no relationship with child, while mother raised child with another partner from whom shelater separated -- Father paid support regularly as set out in order -- Father's income steadily increased topoint where Child Support Guidelines amounts would have required him to pay more support -- Motherinitially sought extraordinary expenses for son's post-secondary education -- Mother amended her applicationto include claim for retroactive child support from 2008 to 2011 -- Mother applied for relief -- Applicationgranted as to post-secondary expenses and ongoing support -- Application dismissed as to retroactive support-- Amount of support reduced -- Despite increase in father's income, this was not proper case forretroactive support -- Father had paid reasonable amount through consent order and believed that hewas overpaying -- Mother never held father to account for expenses before bringing motion -- Remainingsupport was $8,776 which was payable over 15-month period in amount of $585 per month.file:///Y|/Corporate%20Marketing/public/Legal%20...%20Files/12-07-30/CanAbr-Family(Ont)-2012-31.htm (5 of 15) [7/30/2012 1:58:28 PM]

The Canadian Abridgment eDigests - Family Law - OntarioLinkletter v. Fraser(2012), 2012 CarswellOnt1125, 2012 ONSC 436, G.M. Mulligan J. (Ont. S.C.J.); additional reasons at (2012), 2012 ONSC 1462,2012 CarswellOnt 2922, G.M. Mulligan J. (Ont. S.C.J.) [Ontario]FAM.IV.3.j.iii.ASubject Title: Family lawClassification Number: IV.3.j.iii.ASupport -- Child support under federal and provincial guidelines -- Variation or termination ofaward -- Change in circumstances -- Change in meansParties had two children, ages nine and ten -- Order was made that father pay child support in amount of$1,055 per month -- Father was found not to be credible as to his income or expenses and income of $71,000was imputed -- Father's brought-motion to vary child support was dismissed -- Motions judge found father failedto show he had made reasonable efforts to find employment within his capabilities as chemical engineer --Motions judge found father did not show that material change of circumstances had taken place -- Motionsjudge held that father failed to explain whether extra income imputed to him had either been reduced or nolonger existed -- Father appealed -- Appeal dismissed -- Motions judge made no material error orserious misapprehension of evidence that justified intervention in finding that there was no material changein circumstance.G. (C.) v. G. (G.) (2012), 2012 ONSC 944,2012 CarswellOnt 2503, Harvison Young J., Lederman J., Swinton J. (Ont. Div. Ct.); affirming (2011),2011 CarswellOnt 15668, Paisley J. (Ont. S.C.J.) [Ontario]FAM.IV.3.j.iii.CSubject Title: Family lawClassification Number: IV.3.j.iii.CSupport -- Child support under federal and provincial guidelines -- Variation or termination ofaward -- Change in circumstances -- Change in child's custody or residenceParties' child support matter proceeded to trial -- At trial, wife was awarded $484 per month for child support-- Husband claimed that trial judge erred in findings that step-daughter was child of marriage and that fulltable amount was needed for biological daughter -- Husband also claimed that trial judge erred in calculatinghis income -- Husband appealed from judgment -- Appeal dismissed -- Wife was entitled to support forbiological child as she was in mother's care for necessary amount of time -- Father had not established thathe would be taking on greater responsibility for care to be able to avoid child support responsibilities.Lin v. Chen(2012), 2012 CarswellOnt 1088, 2012 ONSC 165, Aston J.,Harvison Young J., Pepall J. (Ont. Div. Ct.); additional reasons to (2011), 2011 ONSC 202, 2011CarswellOnt 15317, H. Sachs J. (Ont. S.C.J.) [Ontario]file:///Y|/Corporate%20Marketing/public/Legal%20...%20Files/12-07-30/CanAbr-Family(Ont)-2012-31.htm (6 of 15) [7/30/2012 1:58:28 PM]

The Canadian Abridgment eDigests - Family Law - OntarioFAM.IV.3.j.iii.CSubject Title: Family lawClassification Number: IV.3.j.iii.CSupport -- Child support under federal and provincial guidelines -- Variation or termination ofaward -- Change in circumstances -- Change in child's custody or residenceParties had brief relationship from which son was born in 1993 -- Father paid child support before consentorder was made in 2001, requiring father to pay $600 per month which included extraordinary expenses --Father had no relationship with child, while mother raised child with another partner from whom shelater separated -- Father paid support regularly as set out in order -- Father's income steadily increased topoint where Child Support Guidelines amounts would have required him to pay more support -- Motherinitially sought extraordinary expenses for son's post-secondary education -- Mother amended her applicationto include claim for retroactive child support from 2008 to 2011 -- Mother applied for relief -- Applicationgranted as to post-secondary expenses and ongoing support -- Application dismissed as to retroactive support-- Amount of support reduced -- Mother was entitled to support for post-secondary expenses, despite lackof relationship between father and son -- Son's behaviour towards father did not entitle father to avoidexpenses for education, as son was not repudiating existing relationship -- Despite increase in father's income,this was not proper case for retroactive support -- Father had paid reasonable amount through consent orderand believed that he was overpaying -- Mother never held father to account for expenses before bringing motion-- Father was to pay ongoing support, but only for months which child resided at home with mother before livingin residence while attending college -- Total child support over 8 months at $647 per month was $5,176-- Remaining support was $8,776 which was payable over 15-month period in amount of $585 per month.Linkletter v. Fraser(2012), 2012 CarswellOnt1125, 2012 ONSC 436, G.M. Mulligan J. (Ont. S.C.J.); additional reasons at (2012), 2012 ONSC 1462,2012 CarswellOnt 2922, G.M. Mulligan J. (Ont. S.C.J.) [Ontario]FAM.V.2.b.iiSubject Title: Family lawClassification Number: V.2.b.iiDomestic contracts and settlements -- Validity -- Formal validity -- Formation of contractParties signed separation agreement on April 23, 2001 -- Parties separated on January 1, 2002 --Separation agreement provided that husband did not need to pay child support, and that property wouldbe transferred to wife on payment of $100,000 -- Wife brought unsuccessful application to upholdseparation agreement, for order to transfer property to her, and for order for child support -- Trial judge heldthat separation agreement was not valid -- Wife appealed -- Appeal dismissed -- Agreement did notmeet requirements for separation agreement under s. 54 of Family Law Act as parties were not living separateand apart at time it was entered into -- Trial judge did not restrict his consideration only to whether agreementwas separation agreement but gave other reasons why agreement was not valid -- Even if agreementfile:///Y|/Corporate%20Marketing/public/Legal%20...%20Files/12-07-30/CanAbr-Family(Ont)-2012-31.htm (7 of 15) [7/30/2012 1:58:28 PM]

The Canadian Abridgment eDigests - Family Law - Ontarioconstituted valid marriage contract, court could not grant relief sought by wife -- Wife had not paid$100,000 amount that would require her to be entitled to acquire property -- Wife's conduct was inconsistentwith existence of binding agreement as she sought and obtained child support contrary to separation agreement.Wodzynski v. Wodzynski (2012), 2012CarswellOnt 5174, 2012 ONCA 272, Alexandra Hoy J.A., K. Feldman J.A., K. Feldman J.A. for Spence J.A. (Ont.C.A.); affirming (2009), 2009 CarswellOnt 7484, A.R. Rowsell J. (Ont. S.C.J.) [Ontario]FAM.V.7.cSubject Title: Family lawClassification Number: V.7.cDomestic contracts and settlements -- Enforcement -- Practice and procedureConduct of trial -- Appeal.Wodzynski v. Wodzynski (2012), 2012CarswellOnt 5174, 2012 ONCA 272, Alexandra Hoy J.A., K. Feldman J.A., K. Feldman J.A. for Spence J.A. (Ont.C.A.); affirming (2009), 2009 CarswellOnt 7484, A.R. Rowsell J. (Ont. S.C.J.) [Ontario]FAM.IX.2.iSubject Title: Family lawClassification Number: IX.2.iCustody and access -- Factors to be considered in custody award -- MiscellaneousParties married in 1996, had two children and separated in 2008 -- For first two months after separationmother refused to let father see children and made complaints to Family and Children's Services allegingfather's bad conduct -- Pursuant to interim interim consent order of December 2008 father had alternateweekend daytime access to Z and one mid-week afternoon access to child E -- Mother continued to resistovernight access to father despite recommendation from Office of Children's Lawyer -- Order was issued formother to have sole custody with specified access to father to both children alternate weekends fromFriday afternoon to Monday morning and mid-week overnight access -- Father appealed -- Appeal allowed in part-- Appeal allowed to extent that father was to be afforded access to children on 35 per cent basis, andwas otherwise dismissed -- Trial judge's findings in relation to custody were amply supported by evidenceand justified conclusion that given lack of communication and cooperation between parties, joint custody wasnot viable option -- Trial judge erred by awarding minimal access -- Terms of access ordered by trial judge failedto respect maximum contact principle contained in s. 16(10) of Divorce Act.V. (B.) v. V. (P.) (2012), 2012 ONCA 262,2012 CarswellOnt 4738, Paul Rouleau J.A., R.P. Armstrong J.A., Robert J. Sharpe J.A. (Ont. C.A.); reversing inpart (2011), 2011 CarswellOnt 2884, 2011 ONSC 2697, Hourigan J. (Ont. S.C.J.) [Ontario]file:///Y|/Corporate%20Marketing/public/Legal%20...%20Files/12-07-30/CanAbr-Family(Ont)-2012-31.htm (8 of 15) [7/30/2012 1:58:28 PM]

The Canadian Abridgment eDigests - Family Law - OntarioFAM.IX.8.a.viiiSubject Title: Family lawClassification Number: IX.8.a.viiiCustody and access -- Access -- Factors to be considered -- Maximization of contact with each parentParties married in 1996, had two children and separated in 2008 -- For first two months after separationmother refused to let father see children and made complaints to Family and Children's Services allegingfather's bad conduct -- Pursuant to interim interim consent order of December 2008 father had alternateweekend daytime access to Z and one mid-week afternoon access to child E -- Mother continued to resistovernight access to father despite recommendation from Office of Children's Lawyer -- Order was issued formother to have sole custody with specified access to father to both children alternate weekends fromFriday afternoon to Monday morning and mid-week overnight access -- Father appealed -- Appeal allowed in part-- Appeal allowed to extent that father was to be afforded access to children on 35 per cent basis, andwas otherwise dismissed -- Trial judge's findings in relation to custody were amply supported by evidenceand justified conclusion that given lack of communication and cooperation between parties, joint custody wasnot viable option -- Trial judge erred by awarding minimal access -- Terms of access ordered by trial judge failedto respect maximum contact principle contained in s. 16(10) of Divorce Act.V. (B.) v. V. (P.) (2012), 2012 ONCA 262,2012 CarswellOnt 4738, Paul Rouleau J.A., R.P. Armstrong J.A., Robert J. Sharpe J.A. (Ont. C.A.); reversing inpart (2011), 2011 CarswellOnt 2884, 2011 ONSC 2697, Hourigan J. (Ont. S.C.J.) [Ontario]FAM.X.3.b.ii.CSubject Title: Family lawClassification Number: X.3.b.ii.CStatus and capacities of children -- Contracts -- Types of contract -- Voidable contracts --Conveyance of real propertyTestator was involved in common law relationship with plaintiffs' grandmother for approximately 40 years --During relationship testator purchased farm and cottage, and ran various businesses -- Testator and plaintiffshad close relationship, substantively as grandfather and grandchildren -- Plaintiffs claimed they enteredagreement with testator in 1985, when they were 17 and 13, that in exchange for their ongoing assistancewith farm and cottage testator would leave them properties, and money for maintenance, on his death --Plaintiffs assisted testator with maintenance and improvements to both properties over next 25 years -- Onhis death in 2009 testator left three wills -- 2001 will bequeathed farm and property, as well as $500,000 each,to plaintiffs -- 2003 will bequeathed $50,000 to plaintiff P, $1,000 to plaintiff M, and did not bequeath propertiesto plaintiffs -- 2008 codicil increased bequest to M to $25,000, but otherwise 2003 will remained unchanged-- Plaintiffs brought action against estate for interest in farm and cottage -- Action allowed -- Agreement madewith plaintiffs when they were minors was clearly to their benefit -- Agreement would not be set aside basedsolely on fact that plaintiffs had not attained age of majority when agreement was entered.file:///Y|/Corporate%20Marketing/public/Legal%20...%20Files/12-07-30/CanAbr-Family(Ont)-2012-31.htm (9 of 15) [7/30/2012 1:58:28 PM]

The Canadian Abridgment eDigests - Family Law - OntarioCowderoy v. Sorkos Estate (2012),2012 CarswellOnt 6857, 2012 ONSC 1921, W.U. Tausendfreund J. (Ont. S.C.J.) [Ontario]FAM.X.4.aSubject Title: Family lawClassification Number: X.4.aStatus and capacities of children -- Property of children -- General principlesRESP - non-dissipation order.G. (C.) v. G. (G.) (2012), 2012 ONSC 944,2012 CarswellOnt 2503, Harvison Young J., Lederman J., Swinton J. (Ont. Div. Ct.); affirming (2011),2011 CarswellOnt 15668, Paisley J. (Ont. S.C.J.) [Ontario]FAM.XV.4.a.iSubject Title: Family lawClassification Number: XV.4.a.iChildren in need of protection -- Application for temporary custody -- Grounds for temporary order-- General principlesRespondent parents had four children, one son, KT, and three daughters, C, A and KN -- Parents separatedin November 2010 -- Parties agreed to equal time-sharing arrangement -- In April 2012, Children's AidSociety commenced protection application, requesting that KT be placed with father and that C, A and KNbe placed with mother -- Father brought motion requesting that children be placed temporarily in his care,or returned to care of parents on equal time-sharing basis -- Motion dismissed -- KT was ordered to remain incare of father, and C, A and KN were ordered to remain in care of mother -- Parents were not well-suited to 50-50 time sharing regime -- Both parents had significant parenting, lifestyle and perhaps mental health issues-- However, mother's problems were comparatively less serious -- Children had suffered because previousequal time-sharing arrangement promoted interminable conflict and destructive behaviour -- Childrenrequired more structured, consistent environment.Children's Aid Societyof Hamilton v. D. (B.) (2012), 2012ONSC 2448, 2012 CarswellOnt 4729, A. Pazaratz J. (Ont. S.C.J.) [Ontario]FAM.XV.14file:///Y|/Corporate%20Marketing/public/Legal%2...20Files/12-07-30/CanAbr-Family(Ont)-2012-31.htm (10 of 15) [7/30/2012 1:58:28 PM]

The Canadian Abridgment eDigests - Family Law - OntarioSubject Title: Family lawClassification Number: XV.14Children in need of protection -- MiscellaneousAction against Children's Aid Society.R. (N.) v. Children'sAid Society of Toronto (2012), 2012CarswellOnt 6092, 2012 ONCA 315, Ducharme J.A., Janet Simmons J.A., S.E. Pepall J.A. (Ont. C.A.);affirming (2011), 2011 CarswellOnt 6198, 2011 ONSC 4261, Edward Belobaba J. (Ont. S.C.J.); additional reasonsat (2011), 2011 ONSC 4412, 2011 CarswellOnt 7216, Edward Belobaba J. (Ont. S.C.J.) [Ontario]FAM.XX.1.aSubject Title: Family lawClassification Number: XX.1.aCosts -- In family law proceedings generally -- General principlesParties' child support matter proceeded to trial -- At trial, wife was awarded $484 per month for child support-- Husband claimed that trial judge erred in findings that step-daughter was child of marriage and that fulltable amount was needed for biological daughter -- Husband also claimed that trial judge erred in calculatinghis income -- Husband appealed from judgment -- Appeal dismissed -- Appeal was dismissed with costs of$3,500 payable to wife.Lin v. Chen(2012), 2012 CarswellOnt 1088, 2012 ONSC 165, Aston J.,Harvison Young J., Pepall J. (Ont. Div. Ct.); additional reasons to (2011), 2011 ONSC 202, 2011CarswellOnt 15317, H. Sachs J. (Ont. S.C.J.) [Ontario]FAM.XX.1.cSubject Title: Family lawClassification Number: XX.1.cCosts -- In family law proceedings generally -- Discretion to awardParties were married in 1987 and separated in 2002 -- Parties had two children, born in 1992 and 1994 -- In2005, parties entered into separation agreement which provided that disputes would be resolved by meansof dispute resolution process -- Mother sent father unsuccessful requests for financial disclosure --file:///Y|/Corporate%20Marketing/public/Legal%2...20Files/12-07-30/CanAbr-Family(Ont)-2012-31.htm (11 of 15) [7/30/2012 1:58:28 PM]

The Canadian Abridgment eDigests - Family Law - OntarioMother commenced application for sole custody and child support -- Father brought successful motion tostay proceedings -- Proceedings were stayed on condition that mediation/arbitration was commenced -- Hearingon costs was held -- No costs were ordered -- Conduct of father could not be condoned or rewarded byawarding him costs -- Father's diatribe in response to requests for financial disclosure was indication that hewould not cooperate voluntarily and intended to re-open all aspects of separation agreement -- Father's failureto provide disclosure was breach of separation agreement and nothing short of bad faith -- Award of costswould have caused mother financial hardship.Thomson v. Thomson (2012), 2012 ONCJ 182, 2012CarswellOnt 3997, R. Zisman J. (Ont. C.J.); additional reasons to (2012), 2012 ONCJ 141, 2012 CarswellOnt2629, Roselyn Zisman J. (Ont. C.J.) [Ontario]FAM.XX.1.f.iiiSubject Title: Family lawClassification Number: XX.1.f.iiiCosts -- In family law proceedings generally -- Costs of particular proceedings -- MiscellaneousTrial took place between parties on issue of spousal support -- Husband was successful at trial in receivingongoing and retroactive support -- Both parties made offers to settle, neither of which was bettered at trial-- Husband sought costs for motion that was withdrawn by wife once wife retained counsel -- Husbandsought costs of action on substantial indemnity basis -- Costs submissions were made -- Costs of motionawarded to husband -- Costs of action awarded to husband -- Motion attendance by husband's counsel couldhave been avoided by wife's counsel consenting to adjournment -- Although motion was eventually settled,costs were properly incurred by husband and offer to settle was similar to eventual resolution -- Costs ofmotion were awarded on substantial indemnity basis -- Costs of motion and action were awarded in totalamount of $36,852.23.Cook v. Cook(2012), 2012 ONSC 1141, 2012 CarswellOnt 2022, McDermotJ. (Ont. S.C.J.); additional reasons to (2011), 2011 CarswellOnt 10276, 2011 ONSC 5920, J.P.L. McDermot J.(Ont. S.C.J.) [Ontario]FAM.XX.1.f.iiiSubject Title: Family lawClassification Number: XX.1.f.iiiCosts -- In family law proceedings generally -- Costs of particular proceedings -- MiscellaneousApplicant husband brought motion for five orders in custody and access matter -- Husband withdrew motionexcept for request for consulting doctor to provide report to each party and file copy with court -- Report wasonly made available at request of husband, for husband's counsel to make report available to professionals --Wife claimed costs on full recovery basis for success on issue decided, as well as costs thrown away for issuesthat were abandoned -- Husband claimed that no costs should be awarded as bringing of motion for accessfile:///Y|/Corporate%20Marketing/public/Legal%2...20Files/12-07-30/CanAbr-Family(Ont)-2012-31.htm (12 of 15) [7/30/2012 1:58:28 PM]

The Canadian Abridgment eDigests - Family Law - Ontariowas necessary, even though issue resolved -- Husband claimed that costs should be no more than $4,500payable by him in any event -- Costs submission made by both parties -- Wife entitled to costs on fullrecovery basis -- Wife was presumptively entitled to costs and there was no basis to disturb this principle --Wife made offer to settle with specification that if wife was to exceed offer to settle on any area, she wouldbe entitled to full recovery costs -- Wife was successful in limiting disclosure of report -- It was unreasonablefor husband to continue pursuing motion, considering family issues that arose after he brought motion -- Wifewas entitled to costs thrown away as result -- Wife had bill of costs slightly reduced for services inscheduling issues, as well as for fact that matter was of first instance -- Wife was awarded in $9,000 in costs.Witts v. Witts2045, Kiteley J. (Ont. S.C.J.) [Ontario](2012), 2012 CarswellOnt 4026, 2012 ONSCFAM.XX.1.g.iSubject Title: Family lawClassification Number: XX.1.g.iCosts -- In family law proceedings generally -- Factors considered -- Conduct of partyTrial took place between parties on issue of spousal support -- Husband was successful at trial in receivingongoing and retroactive support -- Both parties made offers to settle, neither of which was bettered at trial-- Husband sought costs for motion that was withdrawn by wife once wife retained counsel -- Husbandsought costs of action on substantial indemnity basis -- Costs submissions were made -- Costs of motionawarded to husband -- Costs of action awarded to husband -- Wife's conduct in refusal to pay interim supportor agree to permanent support was factor in costs award -- As well, wife took negative tone incommunications with husband and was considered to have acted in bad faith -- Husband's success combinedwith wife's conduct entitled husband to substantial indemnity costs -- Costs of motion and action were awardedin total amount of $36,852.23.Cook v. Cook(2012), 2012 ONSC 1141, 2012 CarswellOnt 2022, McDermotJ. (Ont. S.C.J.); additional reasons to (2011), 2011 CarswellOnt 10276, 2011 ONSC 5920, J.P.L. McDermot J.(Ont. S.C.J.) [Ontario]FAM.XX.1.hSubject Title: Family lawClassification Number: XX.1.hCosts -- In family law proceedings generally -- Scale of costsTrial took place between parties on issue of spousal support -- Husband was successful at trial in receivingongoing and retroactive support -- Both parties made offers to settle, neither of which was bettered at trial-- Husband sought costs for motion that was withdrawn by wife once wife retained counsel -- Husbandsought costs of action on substantial indemnity basis -- Costs submissions were made -- Costs of motionawarded to husband -- Costs of action awarded to husband -- Motion attendance by husband's counsel couldfile:///Y|/Corporate%20Marketing/public/Legal%2...20Files/12-07-30/CanAbr-Family(Ont)-2012-31.htm (13 of 15) [7/30/2012 1:58:28 PM]

The Canadian Abridgment eDigests - Family Law - Ontariohave been avoided by wife's counsel consenting to adjournment -- Although motion was eventually settled,costs were properly incurred by husband and offer to settle was similar to eventual resolution -- Costs ofmotion were awarded on substantial indemnity basis -- Wife's conduct in refusal to pay interim support or agreeto permanent support was factor in costs award -- As well, wife took negative tone in communicationswith husband and was considered to have acted in bad faith -- Husband's success combined with wife'sconduct entitled husband to substantial indemnity costs -- Costs of motion and action were awarded intotal amount of $36,852.23.Cook v. Cook(2012), 2012 ONSC 1141, 2012 CarswellOnt 2022, McDermotJ. (Ont. S.C.J.); additional reasons to (2011), 2011 CarswellOnt 10276, 2011 ONSC 5920, J.P.L. McDermot J.(Ont. S.C.J.) [Ontario]FAM.XX.1.kSubject Title: Family lawClassification Number: XX.1.kCosts -- In family law proceedings generally -- Offer to settleApplicant wife and respondent husband were involved in trial concerning issues of child support andunjust enrichment -- Husband was successful at trial -- Husband's recovery did not exceed offer to settle madeby wife -- Wife sought full recovery of costs from time of settlement offer -- Costs submissions were made --Costs were awarded to wife on full recovery basis -- General principle of full recovery costs for costs incurredafter offer to settle was properly applied here -- Nothing in wife's conduct of litigation warranted reduction ofcosts or to award costs on partial indemnity basis -- Wife's bill of costs was generally reasonable but wasslightly reduced to fix costs at fair and reasonable amount -- Costs were awarded in amount of$43,163.21, including HST and disbursements.Geertsma v. Smith (2012), 2012 ONSC 235, 2012CarswellOnt 2240, Martin James J. (Ont. S.C.J.); additional reasons to (2011), 2011 ONSC 5521, 2011CarswellOnt 13139, M. James J. (Ont. S.C.J.) [Ontario]FAM.XX.1.kSubject Title: Family lawClassification Number: XX.1.kCosts -- In family law proceedings generally -- Offer to settleApplicant husband brought motion for five orders in custody and access matter -- Husband withdrew motionexcept for request for consulting doctor to provide report to each party and file copy with court -- Report wasonly made available at request of husband, for husband's counsel to make report available to professionals --Wife claimed costs on full recovery basis for success on issue decided, as well as costs thrown away for issuesthat were abandoned -- Husband claimed that no costs should be awarded as bringing of motion for accesswas necessary, even though issue resolved -- Husband claimed that costs should be no more than $4,500file:///Y|/Corporate%20Marketing/public/Legal%2...20Files/12-07-30/CanAbr-Family(Ont)-2012-31.htm (14 of 15) [7/30/2012 1:58:28 PM]

The Canadian Abridgment eDigests - Family Law - Ontariopayable by him in any event -- Costs submission made by both parties -- Wife entitled to costs on fullrecovery basis -- Wife was presumptively entitled to costs and there was no basis to disturb this principle --Wife made offer to settle with specification that if wife was to exceed offer to settle on any area, she wouldbe entitled to full recovery costs -- Wife was successful in limiting disclosure of report -- Wife was awardedin $9,000 in costs.Witts v. Witts2045, Kiteley J. (Ont. S.C.J.) [Ontario](2012), 2012 CarswellOnt 4026, 2012 ONSCfile:///Y|/Corporate%20Marketing/public/Legal%2...20Files/12-07-30/CanAbr-Family(Ont)-2012-31.htm (15 of 15) [7/30/2012 1:58:28 PM]