Alex Toolsie

The applicant father brought an urgent motion for access to his three children, which was opposed by the respondent mother who also sought supervised, graduated access and child support.

The court, acting as Triage Judge under COVID-19 protocols, determined that the matter was not urgent, citing the absence of a prior parenting order, lack of immediate safety or well-being concerns, the father's unreasonable request for immediate overnight access given serious abuse allegations, and his failure to propose a realistic parenting plan considering COVID-19 precautions.

The urgent motion was dismissed, and parties were encouraged to negotiate a safe, graduated parenting schedule, potentially involving virtual contact and third-party supervision for face-to-face contact.

The applicant Mother brought a motion seeking shared residency and a specific exchange location for the child.

The respondent Father opposed, advocating for the child to remain in his primary care, maintaining the status quo.

The court dismissed the Mother's requests for shared residency and the proposed exchange location, finding it not in the child's best interests to significantly alter the status quo or to potentially move the child twice in a short period.

However, the court increased the Mother's parenting time to include one overnight during the week and extended alternate weekend care, emphasizing the maximum contact principle and the importance of the sibling relationship.

The parties separated in May 2018 and have one child together, born prematurely with significant medical needs.

The applicant mother sought sole custody and primary residence, while the respondent father sought joint custody and equal parenting time.

The court found that both parents were fit and capable, and that the mother had unreasonably denied the father access post-separation.

Applying the maximum contact principle and the best interests of the child factors, the court ordered joint custody and an equal shared parenting schedule.

This is a costs endorsement following a nine-day trial concerning a maternal grandmother's access to her grandson, which was opposed by the father.

The grandmother was partially successful in obtaining access, though less than she sought.

The court awarded the grandmother $10,000 in costs, inclusive of HST and disbursements, payable by the father.

Key considerations included the grandmother's partial success, her unreasonable failure to make an offer to settle, and the father's financial circumstances, though the latter did not lead to a reduction in costs due to insufficient evidence.

The court also affirmed that a party's legal aid status is not a factor in determining costs.

The court issued a costs endorsement following a one-day trial of two construction lien actions.

The lien claimants, Hogg Fuel & Supply Limited and Absolute Electric, obtained modest judgments against Home Trust Company and larger judgments against the owners and general contractor.

Claims against Centurion Mortgage Capital Corporation were dismissed.

The court applied Rule 49.10(2) of the Rules of Civil Procedure, finding that Home Trust Company's settlement offers were more favourable than the judgments obtained by the lien claimants.

Consequently, Hogg Fuel and Absolute Electric were awarded partial indemnity costs from Home Trust up to the date of the offers, and Home Trust was awarded partial indemnity costs from them thereafter.

Centurion was awarded partial indemnity costs from Hogg Fuel and Absolute Electric for the entire action.

The court rejected the request for substantial indemnity costs, reiterating that such awards require either Rule 49.10 conditions or a clear finding of reprehensible conduct, neither of which was present.

Costs against the non-participating owners and general contractor were also fixed.

This trial involved two consolidated construction lien actions concerning the priority of lien claimants (Hogg Fuel & Supply Limited and Absolute Electric) against mortgagees (Home Trust Company and Centurion Mortgage Capital Corporation) due to a deficiency in the statutory holdback.

The owners and general contractor failed to retain the required holdback.

The court determined that the lien claimants' entitlement to priority for the basic holdback expired because their liens were not preserved within 45 days of the Certificate of Completion's publication.

Consequently, the lien claimants were granted priority over the Home Trust mortgage only for the deficiency in the finishing holdback (10% of their claims).

The Centurion mortgage was deemed not a construction mortgage, thus no priority applied against it.

Full judgment for the lien amounts was awarded against the non-appearing owners and general contractor.

On appeal from a summary judgment decision, the husband challenged the characterization of over $1.3 million in investments derived from his parents' advances during a 37-year marriage.

The central issue was whether the funds constituted gifts to the parties or were held in resulting trust for the parents or as loans.

The motion judge found the presumption of resulting trust had been rebutted and characterized the advances as gifts to both parties.

The husband also challenged the suitability of summary judgment, the striking of portions of his affidavit, the treatment of dissipated assets, and the charge placed on the matrimonial home.

The Court of Appeal upheld the motion judge's decision on all grounds.

The appellant brought a motion for leave to extend the time to file an appeal of a final family law order.

A threshold jurisdictional issue arose regarding whether the appeal properly lay to the Divisional Court or the Court of Appeal under s. 19(1.2) of the Courts of Justice Act.

The court interpreted the term 'single payment' and concluded that multiple lump sum payments ordered for section 7 expenses, which individually and combined fell under the $50,000 threshold, constituted a 'single payment'.

The court granted the extension of time and confirmed the Divisional Court had jurisdiction to hear the appeal.

This endorsement addresses the issue of costs following the respondent's unsuccessful motion to change child support.

The applicant, who successfully resisted the motion, sought costs.

The court considered the principles of costs, including Rule 24, Rule 18, proportionality, and the impact of settlement offers.

While some costs for earlier conferences were disallowed due to lack of timely request, the court ultimately awarded the applicant $4,000.00 in costs, inclusive of disbursements and HST, payable forthwith by the respondent, and declared them enforceable by the Director of F.R.O. as support-related expenses.

The Respondent Father brought a motion to change his child support obligations for two adult children, Jamie Lee Duesling and Damya Skye Duesling, as ordered in 2008.

The Applicant Mother brought responding motions, which were dismissed without costs.

The court addressed the father's significant child support arrears and his contribution to the children's post-secondary education expenses (s.7 expenses), noting his increased income since the original order and his evasion of obligations.

The court declined to apply the D.B.S. guideline of 3 years for retroactive support and also declined to adjust the basic guideline support amount despite the rationale in Park v. Thompson, citing the father's "support holiday." The father was ordered to pay substantial arrears of guideline child support and one-third of the children's s.7 education expenses forthwith, and ongoing child support for the younger child.

The applicant wife brought a motion for summary judgment for equalization of net family property and spousal support.

The central issue was whether substantial advances made by the respondent husband's parents during the marriage were gifts or subject to a resulting trust.

The court found no genuine issue requiring a trial, rebutted the presumption of resulting trust, and characterized the advances as gifts.

The court ordered the respondent to pay an equalization payment of $592,308 and spousal support arrears, and granted the applicant security over the former matrimonial home.

The accused was charged with impaired care or control of a motor vehicle and care or control with blood alcohol content exceeding the legal limit.

The vehicle became stuck in a snowbank in the early morning hours.

Civilians assisted in extricating the vehicle using a tow rope.

Police arrived at the scene and found the accused in or near the driver's seat.

The Crown proved impairment and care or control of the vehicle.

However, the Crown failed to establish that breath tests were taken as soon as practicable due to unexplained delays between the duty counsel call and the breath testing, particularly a significant gap between when the breath technician was ready and when the accused was presented for testing.

The accused was convicted of impaired care or control but acquitted of the over 80 charge.

The respondent father brought an urgent motion seeking that the parties' seven-year-old daughter reside with him and continue attending school in Waterloo, Ontario.

The applicant mother brought a cross-motion seeking to relocate the child to Manitoulin Island where she had already moved without court authorization.

The court applied the principles from Gordon v. Goertz and the interim mobility test from Plumley v. Plumley.

Finding that the mother had acted precipitously and contrary to the child's best interests by relocating without seeking a court order first, and that custody remained undetermined, the court dismissed the mother's motion and ordered the child returned to the father's care in Waterloo Region pending trial.