Anser Umar Farooq

This decision addresses a high-conflict family law trial regarding the primary residence of a four-year-old child, S.P., following the separation of her parents, Sanjay Patel and Beejal Yogesh Sesha Patel.

The court considered issues of relocation, parenting time, decision-making responsibility, child and spousal support, and equalization of net family property.

The court found that it was in S.P.'s best interests to continue residing with her mother in London, England, and for the existing parenting schedule to remain in place.

The court also ordered retroactive and ongoing child support, retroactive spousal support, and set out directions for the continuation of the trial on outstanding financial issues.

The Crown appealed stays of proceedings granted to three respondents on the basis of their s. 11(b) Charter right to trial within a reasonable time.

The trial judge had found breaches of the Jordan ceilings, but the Court of Appeal found that she did not adequately account for the systemic disruptions to court operations caused by the COVID-19 pandemic as discrete exceptional circumstances.

The Court provided guidance on how trial courts should account for pandemic-related delays, emphasizing a holistic approach and treating province-wide closures, jury blackouts, local restrictions, and backlog prioritization as discrete exceptional circumstances.

The appeals were allowed, and the stays of proceedings were set aside.

This costs endorsement followed a successful appeal where the appellants were wholly successful on the underlying motion.

The appellants sought costs of approximately $28,800 for the motion.

The court found this amount reasonable, considering the respondent had previously been awarded $34,663.03 on partial success of the same motion.

The court ordered the respondent to pay the appellants $28,800 in all-inclusive costs for the motion.

The appellants appealed a motion judge's decision that partially set aside a default judgment against them and imposed substantial indemnity costs, including a personal costs order against their counsel.

The default judgment stemmed from their inability to close on a home purchase agreement, leading to the respondent retaining their down payment and selling the property at a significant loss.

The Court of Appeal allowed the appeal in full, finding that the motion judge erred in her assessment of the appellants' arguable defence, misapplied principles regarding promptness and prejudice, and made palpable and overriding factual errors.

The personal costs order against counsel was set aside due to a breach of procedural fairness and factual errors.

The Court ordered the default judgment and noting in default to be set aside entirely, allowing the appellants to file a full statement of defence and counterclaim, and awarded substantial indemnity costs of the appeal to the appellants.

This is an appeal from a Superior Court decision concerning the enforceability of a non-competition covenant in an employment agreement.

The appellant employer sought to enforce the covenant against a former employee, a pharmacist, who left to work at a competing pharmacy.

The application judge found the covenant unenforceable due to ambiguity and overbreadth.

The Court of Appeal upheld this decision, affirming that the covenant's broad wording, which prohibited the employee from being "concerned with" or "interested in" any similar business, extended beyond what was reasonably required to protect the employer's legitimate interests.

The court reiterated that it cannot rewrite an unreasonable restrictive covenant.

The appellant sought to overturn a motion judge's order declining to restore their action to the trial list, dismissing it for delay, and discharging a certificate of pending litigation.

The Court of Appeal found no error in the motion judge's conclusions that the delay in prosecuting the action was entirely the appellant's responsibility, was unexplained, inordinate, and inexcusable.

The court agreed that an inference of prejudice arose from the lengthy delay, jeopardizing the likelihood of a fair trial due to the passage of time, impact on witness memories, and lack of proper discoveries.

The appeal was dismissed with costs.

The plaintiff moved to restore its action to the trial list under Rule 48.11, while the defendant cross-moved to dismiss the action for delay under Rule 24.01.

The court found that the plaintiff failed to provide a reasonable explanation for the significant delay in prosecuting the action since its inception in 2012, and also failed to demonstrate that the defendant would not suffer non-compensable prejudice if the action were restored.

The court drew an adverse inference from the plaintiff's reliance on lawyer affidavits rather than a deponent with direct personal knowledge.

Given the plaintiff's history of contempt findings and failure to pay costs in related litigation, the court concluded the plaintiff lacked good faith in prosecuting the action.

Consequently, the plaintiff's motion was dismissed, and the defendant's motion to dismiss the action for delay was granted, with an order to discharge the certificate of pending litigation.

The Crown appealed the sentence of a conditional discharge, probation, DNA order, and s. 110 order imposed on the respondent for assault and uttering a threat, arguing it was demonstrably unfit and failed to adequately emphasize denunciation and deterrence.

The court upheld the trial judge's sentence, finding no error in principle or law, and that the sentence was not demonstrably unfit, despite being comparatively lenient.

The father appealed a trial judge's order granting the maternal uncle monthly weekend access to the children following the mother's death.

The trial judge had awarded sole custody to the father but ordered that the uncle have access one weekend per month, including overnight visits.

The father argued the trial judge erred in finding that access would not occur without a court order, that the trial judge failed to provide sufficient reasons for disbelieving his evidence that he would voluntarily provide access, and that the trial judge failed to consider potential psychological harm to the father.

The Court of Appeal dismissed the appeal, finding the trial judge's decision was properly driven by the children's best interests and entitled to deference.

Anissah Auckbaraullee was convicted of fraud over $5000 against the Ontario Hospital Association, involving a breach of trust.

The court considered aggravating factors, including the breach of trust and planning, and significant mitigating factors, such as a history of spousal abuse, health issues, financial hardship, and the profound impact of the criminal proceedings and potential deportation on her family life.

Despite the Crown seeking 12-18 months imprisonment, the court imposed a conditional sentence of two years less a day with house arrest, followed by two years probation, and a restitution order of $80,370, finding it to be one of the rare cases where a conditional sentence was appropriate for large-scale fraud due to compelling circumstances and the collateral immigration consequences.

The accused, J.D., was charged with three counts of sexual assault against his wife, D.D. The incidents allegedly occurred between January and April 2017.

The defense argued that D.D.'s testimony was not credible or reliable, suggesting a motive to fabricate due to ongoing family law proceedings, and highlighted inconsistencies in her statements.

The Crown argued D.D.'s testimony was credible, supported by an audio recording demonstrating the accused's animus and his admissions regarding alcohol use.

The court found J.D.'s testimony regarding his drinking problematic and inconsistent.

However, due to significant inconsistencies in D.D.'s testimony, particularly regarding the number and details of alleged assaults and "French Vanilla incidents," and a lack of thorough investigation into D.D.'s cell phone, the court was left with a reasonable doubt.

The court could not decide whom to believe and therefore found J.D. not guilty on all three counts.

The applicant brought a motion to strike the respondent's pleadings and find him in contempt due to a lengthy and extensive history of non-compliance with numerous court orders, including significant arrears in child and spousal support, failure to pay costs, and persistent non-disclosure.

The court granted the motion to strike the respondent's Answer, allowing the case to proceed uncontested without his participation.

While acknowledging the respondent's egregious conduct, the court deemed a formal contempt finding unnecessary given the severity of striking the pleadings and the substantial costs awarded.

The court also ordered the respondent to deposit his passport with the Canada Border Services Agency to ensure enforceability upon his potential return to Canada.

Mr. Gandhi sued Zev Investments Limited for injuries sustained after slipping on a liquid in his apartment building's stairwell.

Zev brought a motion for summary judgment, arguing no genuine issue for trial existed, as Mr. Gandhi's theories about the hazard were inconsistent and refuted by their evidence.

Mr. Gandhi maintained he slipped on paint or paint oil spilled by Zev's contractor and argued Zev failed to maintain a proper inspection system.

The court dismissed Zev's motion, finding a genuine issue for trial regarding the cause of the fall, Zev's vicarious liability, and the adequacy of its maintenance system, concluding that a summary judgment process would not be proportionate or efficient given the need for extensive witness testimony.

The appellant, Fawzi Kamakh, appealed his conviction for criminal harassment under s. 264(2) of the Criminal Code.

The appeal was based on three grounds: ineffective assistance of trial counsel, the trial judge's refusal to allow further cross-examination of the complainant after a Browne v. Dunn issue arose, and insufficient evidence to support a finding of guilt.

The court dismissed the appeal, finding no miscarriage of justice due to counsel's conduct given the overwhelming evidence, deeming the cross-examination issue moot as the Crown did not rely on the reply evidence, and affirming that the mens rea elements for criminal harassment were met, as the appellant knew or was wilfully blind to the complainant's harassment and fear for her safety.

A motion for costs brought by the respondent father against the Children's Aid Society of the Region of Peel in a child protection matter.

The father challenged the Society's apprehension of his newborn son, arguing the Society acted unfairly and with reckless disregard when the dispute was merely between separated parents regarding discharge from hospital.

The court dismissed the motion, finding the Society acted reasonably and fairly in obtaining a warrant to apprehend the child following a serious conflict at the hospital involving verbal and physical confrontation between the parents, concerns raised about the mother's mental health, and intervention by nursing staff, security, and police.

The child was returned to the father's care within five days with a settlement agreement.

Appeal from orders of the Superior Court requiring the appellant mother to return two children to their habitual residence in England pursuant to the Hague Convention on the Civil Aspects of International Child Abduction.

The application judge declined to assess whether the grave risk of harm exception applied due to conflicting affidavit evidence and ordered the children's return.

The Court of Appeal found three errors: the application judge improperly awarded custody as a sanction for breach of the return order, lacked jurisdiction to order the appellant to return to England with the children, and erred in declining to assess the grave risk of harm exception under Article 13(b) of the Hague Convention.

The appeal was allowed and the orders were set aside.

The appellant moved for a stay of an order requiring the return of two children to England under the Hague Convention on the Civil Aspects of International Child Abduction.

The respondent brought a cross-motion to dismiss the appeal.

The application judge had ordered the children returned to England, their habitual residence, after finding that the appellant had wrongfully retained them in Canada.

The Court of Appeal dismissed the cross-motion, finding the two sets of reasons constituted one final order appealable within the prescribed timeframe.

The court refused to stay the order for return of the children, finding no irreparable harm and that the balance of convenience favoured prompt return.

However, the court granted a partial stay with respect to portions of the order purporting to order the appellant's return to England and to award custody to the respondent if the children were not returned by the deadline.

The plaintiff moved for the appointment of an inspector over 2390247 Ontario Inc. c.o.b.

Alyousef Brother’s, alleging he was a beneficial shareholder and that the business was conducted oppressively.

The defendants disputed his shareholder status and argued other remedies should be exhausted.

The court found a prima facie case that the plaintiff was a beneficial shareholder, supported by documentary evidence including emails and text messages demonstrating his involvement in the company's formation and contract negotiations.

Given the defendants' lack of cooperation in providing financial information, the court determined that an investigation was appropriate.

The motion was granted, and an inspector was appointed with specific powers and reporting obligations to investigate the company's financial affairs.

The plaintiff was awarded costs.

The accused was charged with two offences: driving with an excessive blood alcohol level contrary to s. 253(1)(b) of the Criminal Code, and possession of a prohibited weapon (a centrifugal force knife) contrary to s. 91(2) of the Criminal Code.

The accused brought a Charter application alleging racial profiling by the arresting officer, claiming he was arbitrarily detained in violation of s. 9 of the Charter.

The trial judge rejected the racial profiling allegation, finding the officer conducted a legitimate R.I.D.E. spot-check and that the accused's race played no role in the detention.

The trial judge found the officer credible and the accused's evidence unreliable on key points.

The accused was convicted on both counts.

The applicant, Mr. Noor, brought a motion to vary an interim order dated January 28, 2016, seeking to reduce his child and spousal support obligations and to obtain an order allowing him to travel internationally with his son annually.

The court found insufficient evidence to justify a change in interim support, noting that the applicant had not pursued available steps to mitigate income reduction and that the respondent, a stay-at-home mother, should not have income imputed at this stage.

The request for international travel was also denied, with the court suggesting that resources should be focused on resolving outstanding issues.

The motion was dismissed, and the file was adjourned to a settlement conference.