Allen Wilford

A family law trial concerning custody and access of an 11-year-old child following the separation of the parents.

The parties agreed to joint custody but disputed primary residence.

The father sought primary residence, citing the mother's interference with access and her night-shift work schedule.

The mother sought to maintain primary residence, relying on the status quo and her historical role as primary caregiver.

The court granted primary residence to the father, finding that despite the mother's long-standing caregiving role, the child's consistent preference to live with his father, the mother's deliberate obstruction of access, and concerns regarding the child's academic performance and safety while the mother worked nights warranted a change from the status quo.

The court emphasized the importance of the child's voice and applied "Katelynn's Principle" in considering the child's mature and thoughtful views.

The accused, C.L., was charged with sexual assault.

The complainant, P.J., became severely intoxicated and unconscious at a party hosted by C.L. She testified to blacking out and having fragmented memories of sexual activity with C.L., to which she did not consent.

C.L. claimed P.J. consented and participated.

The court found P.J. was incapable of consenting due to extreme intoxication and unconsciousness, and that C.L. was reckless and wilfully blind to her lack of consent.

C.L. was found guilty of sexual assault.

The plaintiff was successful on a motion for a stay of proceedings and security for costs against the defendant.

In this costs endorsement, the court fixed the plaintiff's costs of the motion at $15,500 on a partial indemnity basis.

The court considered the extensive litigation history, the defendant's unpaid costs awards, and the reasonable expectations of the parties.

The defendant was ordered to pay the costs by a specified date, failing which its forthcoming motion to set aside the trial judgment would be dismissed.

The plaintiff sought an order prohibiting the defendant, Rosen Ridge Farms Ltd., from pursuing an upcoming motion to set aside a trial judgment unless outstanding costs orders were satisfied and security for costs for the new motion was posted.

The court found that Rosen Ridge had repeatedly failed to comply with previous costs orders and that its claim of impecuniosity was not valid given its shareholder's refusal to post security.

The court ordered Rosen Ridge to pay $47,000 in outstanding costs and post $40,000 as security for costs by June 30, 2016, failing which its motion to set aside the trial judgment would be automatically dismissed.

The appellants abandoned their appeal before the respondent began preparing oral arguments, although the respondent's factum had already been filed.

The Court of Appeal dismissed the appeal as abandoned.

After hearing the cross-appeal and submissions on costs, the court awarded $25,000 in costs to the respondent, noting the complexity of the record.

The cross-appellant appealed the trial judge's deletion of the word 'sham' and the removal of accounting and seizure remedies from the formal judgment.

The Court of Appeal found no error in the trial judge's decision to omit the factual finding of a 'sham' from the declaration that the transaction was void.

However, the Court allowed the cross-appeal in part, granting the accounting and seizure remedies against the corporate defendant, but not against the individual who was not a party to the trial.

The trial judgment was varied accordingly.

In a family law proceeding, the parties brought competing motions seeking various interim relief including disclosure, equalization advances, support adjustments, reimbursement claims, and other orders.

The court emphasized that interim orders are intended to provide temporary structure pending trial and discouraged repeated motions attempting to re‑litigate previously determined issues.

Several claims were dismissed or deferred to trial due to insufficient evidence or because they were more appropriately resolved on a full evidentiary record.

The court increased interim spousal support after the cessation of child support and imputed limited farming income to the husband.

A restraining order was issued preventing the wife from accessing the husband’s financial records or business premises through self‑help methods.

The moving party sought to set aside noting in default entered against it in relation to a counterclaim and crossclaim in consolidated construction lien proceedings and also sought to strike portions of the responding parties’ pleadings.

The court applied the test for setting aside default in construction lien actions, requiring a reasonable explanation for delay, a continuing intention to defend, and evidence of a meritorious defence.

The court found these criteria satisfied and set aside the noting in default.

The court further held that breach of trust allegations contained in the pleadings were barred under s. 50(2) of the Construction Lien Act because trust claims cannot be joined with lien claims, even when raised by counterclaim or crossclaim.

The offending paragraphs were struck, with leave to amend pleadings in compliance with the statute.

Following dismissal of a motion seeking numerous forms of relief in a construction lien dispute, several successful parties sought costs against the moving owners.

The court considered the presumption that successful litigants receive costs and the factors under Rule 57.01(1) of the Rules of Civil Procedure.

The court rejected arguments that alleged misconduct by the successful parties disentitled them to costs and held that the motion was largely unsuccessful and unnecessary in several respects.

Full recovery costs were awarded to one contractor whose claim should never have been contested, while partial indemnity costs were granted to the contractor and subcontractors in reduced amounts to remain fair and proportionate.

The moving parties, owners of a motel, brought a motion under s. 47(1) of the Construction Lien Act to discharge or vacate several construction liens registered by the contractor and subcontractors.

The owners argued the liens should be discharged or, alternatively, vacated upon posting $100,000 as security.

The court dismissed the motion, finding that a motion to discharge a lien is akin to a summary judgment motion and there were numerous genuine issues of material fact requiring a trial, including responsibility for delays, scope of the contract, and quality of work.

The court also declined to arbitrarily reduce the security amount required to vacate the liens from the $489,000 claimed.

The applicant, a grandson of the deceased who died intestate, sought a declaration that bank and investment accounts held jointly between the deceased and her surviving son formed part of the estate.

The respondent son argued that the accounts were joint with right of survivorship and therefore passed to him outside the estate.

Applying the presumption of resulting trust articulated in Pecore v. Pecore, the court held that the respondent failed to rebut the presumption with sufficient evidence of the deceased’s intention to gift survivorship rights.

The evidence consisted largely of the respondent’s self‑serving assertions and unsupported bank correspondence, while documentary banking records and other objective indicators of intention were absent.

The court concluded the jointly held funds reverted to the estate and were to be distributed pursuant to the intestacy regime under the Succession Law Reform Act.

In an estates proceeding involving an application to pass accounts, a beneficiary brought a motion seeking disclosure of bank records from several years before the estate trustees assumed their roles.

The moving party argued that substantial proceeds from the sale of the deceased’s home appeared unaccounted for and requested that the estate trustees sign releases permitting access to earlier bank records.

The court held that estate trustees are not obligated to investigate or disclose financial records predating their fiduciary responsibilities absent evidence linking them to alleged improprieties.

The evidentiary record did not establish a reasonable basis to infer wrongdoing or missing funds.

The motion for disclosure was dismissed.

This was a costs endorsement following a nine-day trial in a fraudulent conveyance and property transfer dispute in which the plaintiff was entirely successful against the remaining defendant.

The court held that the plaintiff's unaccepted Rule 49 offer engaged the presumptive consequences in Rule 49.10(1), because the judgment was as favourable as the offer, entitling the plaintiff to partial indemnity costs before the offer and substantial indemnity costs thereafter.

Applying the trial judge's discretion under s. 131 of the Courts of Justice Act and the Rule 57.01 factors, the court found the claimed costs generally fair and reasonable given the complexity, duration, expert evidence, and vigorous defence.

However, the court reduced tranche 3 fees by one-ninth for unnecessary focus on irrelevant property transactions, and fixed total costs at $671,331.17 inclusive of disbursements and HST.

The applicant mother sought child support, section 7 expenses, and spousal support arrears from the respondent father.

The court found the father was intentionally underemployed after leaving a lucrative sales position to start his own business and rely on social assistance.

The court imputed an annual income of $50,000 to the father from 2011 onwards.

The court ordered the father to pay child support, section 7, and spousal support arrears based on the parties' actual and imputed incomes, with monthly payments totaling $1,000.

A contractor brought a construction lien action against homeowners for unpaid invoices relating to electrical work performed on a newly constructed log home.

The homeowners argued the claim was unenforceable because the agreement was not in writing as required by the Consumer Protection Act, 2002, and counterclaimed for damages for alleged defective work.

The court held that although the oral agreement contravened the statutory requirement for a written future performance agreement, it would be inequitable to invalidate the contract under s. 93(2) because the work was substantially performed and the homeowners received benefit.

The contractor was not entitled to a materials markup, travel time charges, or reimbursement for newly purchased equipment, but otherwise proved entitlement to payment.

The counterclaim alleging defective work and damages was dismissed for lack of evidence.

In insolvency proceedings involving a corporate plaintiff in receivership, the defendant moved to dismiss the related civil action for delay, relying primarily on Rule 11 of the Rules of Civil Procedure and alleging prejudice arising from the receiver’s failure to obtain an order to continue following the appointment of a receiver.

After issuing an earlier endorsement approving the receiver’s conduct and the assignment of the claim, the court clarified that the defendant had intended to maintain its Rule 11 motion despite abandoning its Rule 24 delay motion.

The court held that the receiver had acted reasonably during the stay period and that the time taken to assess and assign the claim did not constitute unacceptable delay.

Allegations of prejudice, including the death of a witness and departure of employees, were unsupported by evidence and did not establish real prejudice.

The motion to dismiss was therefore formally dismissed.

A municipality applied for court confirmation of emergency building orders relating to a failed residential septic system and sought recovery of remediation costs to be added to the property tax roll under the Building Code Act and Municipal Act.

The court held it lacked jurisdiction to confirm the municipality’s orders because statutory service and procedural requirements under the Building Code Act had not been complied with.

The court nevertheless found the septic system had failed and that the municipality reasonably incurred pumping costs to mitigate sewage seepage.

Fees related to an engineering report were not recoverable because the municipality unreasonably delayed disclosing the report to the homeowner.

Judgment was granted only for the septic pumping costs, which were ordered to be added to the property’s tax roll as a priority lien.

The accused was charged with sexual assault, sexual interference, and invitation to sexual touching involving a child under 16.

The court assessed conflicting testimony between the accused and the complainant, a child who testified via audio link, and examined alleged inconsistencies raised by the defence.

The judge rejected the accused’s testimony as unreliable and found the complainant’s evidence credible and compelling despite a minor inconsistency.

The court held that the complainant’s testimony established the essential elements of the offences beyond a reasonable doubt.

Convictions were entered on all three counts.

In matrimonial litigation involving equalization claims and control of a seasonal motel business, the husband sought authorization to complete an agreement of purchase and sale of the property to a third‑party purchaser, disclosure from the court‑appointed receiver, and temporary permission to travel outside Canada to attend his mother's funeral.

The court found the purchaser to be a bona fide arm’s‑length third party and held the negotiated purchase price reasonable given the business’s financial losses, receivership, and lack of competing offers.

The court granted disclosure from the receiver and permitted the husband to travel subject to security conditions due to support and costs arrears.

It further ordered the wife to remove the matrimonial home designation and authorized completion of the sale with proceeds to be paid into court pending resolution of the family claims.

A motion to change a final custody order from 2007 in which the maternal uncle was awarded custody of a child on consent of both parents.

The mother sought to regain custody after achieving sobriety and stability following a history of substance abuse.

The court found a material change in circumstances and awarded custody to the mother, finding that the uncle's inflexibility, controlling behavior, and unwillingness to facilitate the child's relationship with her mother and paternal family were contrary to the child's best interests, despite the uncle providing a stable home environment.