Breese Davies

This motion concerned the interpretation of "spouse" under section 29 of the Family Law Act, specifically the phrase "are the parents of a child." The applicant, Mr. Elkind, sought a declaration that he and the respondent, Ms. Addeo, were not spouses, arguing their child's death before separation negated spousal status.

The court dismissed the motion, holding that the phrase means two people who have a child together while cohabiting in a relationship of some permanence are spouses, regardless of whether the child is alive at the date of separation.

The decision emphasized that economic consequences and mutual commitment arising from the decision to have a child persist even if the child does not survive.

The applicant, A.B., brought a motion seeking orders for substitute service of her application materials on the respondent, C.D., by email, and for the anonymization of the names of the parties and their children in the court file.

A.B. alleged C.D. was involved in a multi-million-dollar fraud, leading to threats against her and the children, and C.D.'s whereabouts were unknown.

The court granted both requests, finding substitute service appropriate given C.D.'s evasion and anonymization necessary to protect the family from physical and psychological harm, balancing it against the open court principle.

Costs were awarded to the applicant for the substitute service portion of the motion.

Sentencing decision following convictions for attempted procurement of a child for sexual services, child luring, invitation to sexual touching, and possession of child pornography for the purpose of distribution arising from online communications with a 15-year-old complainant.

The court applied the rule against multiple convictions to stay overlapping possession and sexually explicit material counts, and held the applicable one-year mandatory minimum sentences unconstitutional and inapplicable, relying on prior appellate and trial authorities and principles of judicial comity.

In fixing sentence, the court emphasized denunciation and deterrence for sexual offences against children, weighed significant aggravating factors including grooming, graphic communications, actual harm, and the complainant’s age, and gave meaningful mitigation for the offender’s failed attempt to procure, collateral immigration consequences, pandemic custody conditions, and more than four years on stringent bail without internet access.

A global sentence of three and a half years’ imprisonment was imposed with ancillary SOIRA, DNA, no-contact, employment, and tailored internet conditions.

The accused was charged with several offences, including sexual assault and child luring.

During the investigation, police impersonated the 15-year-old complainant using her phone to communicate with the accused and capture his messages without a warrant.

Upon his arrest, police conducted a warrantless search of his cell phone, taking screenshots of all messages across multiple applications.

The court found that the accused had a reasonable expectation of privacy in his messages to the complainant, and that the warrantless undercover operation violated his s. 8 Charter rights.

The court also found the search of his phone incident to arrest was overly broad and violated s. 8.

Applying s. 24(2) of the Charter, the court excluded the evidence obtained from the undercover operation and the search incident to arrest.

Following the dismissal of the applicant's motion for an interim injunction, the respondent sought substantial indemnity costs.

The court found that the applicant had filed inaccurate and misleading evidence regarding its history of chargeable conciliations, which justified an enhanced costs award.

However, the court found the respondent's claimed amount of $86,845.95 to be disproportionate to the complexity of the matter.

The court awarded the respondent $45,000 in costs inclusive of disbursements and HST.

Following a 14-day trial on an application to pass accounts where the applicant trustees were ordered to repay $150,531.14 to the trust, the respondent sought $567,157.64 in substantial indemnity costs.

The court found the respondent was the successful party and entitled to costs.

However, the court declined to award enhanced costs, finding that while the applicants failed to keep proper records and created documents to reconstruct the accounts, their conduct was not reprehensible or scandalous.

The court also found the respondent's costs claim was disproportionate and unreasonable due to over-lawyering and unreasonable litigation conduct.

The court awarded the respondent $90,000 in costs inclusive of disbursements and taxes.

Following the dismissal of the applicant's motion to invalidate a condominium lien, the respondent condominium corporation sought full indemnity costs of $23,905.99.

The court found that the conduct of the applicant's counsel was reprehensible, scandalous, and outrageous, including making unsubstantiated allegations of professional misconduct and fraud, failing to respond to communications, and acting abusively.

The court awarded the respondent its full indemnity costs to sanction this conduct and bring finality to the litigation.

The accused was tried on multiple sexual and child-exploitation charges arising from online communications and an in-person meeting with a 15-year-old complainant.

The court found the Crown proved, through circumstantial evidence, device evidence, matching BBM pin data, screenshots, and a recorded call, that the accused was the online communicator, knew the complainant's age, sent sexually explicit material, lured the complainant, possessed and distributed child pornography, invited sexual touching, and attempted to procure the complainant for sexual services.

The court rejected the complainant's evidence on the alleged in-person touching because of serious credibility and reliability concerns, including exaggerations, contradictions with surveillance video, and motive to fabricate, and entered acquittals on sexual assault and sexual interference.

Findings of guilt were entered on the remaining counts subject to conditional or election-based stays for overlapping offences.

During an application to set aside a condominium lien, the applicant's counsel was administratively suspended by the Law Society of Ontario.

The court convened a hearing to determine if it had jurisdiction to rule on the application and whether counsel should pay costs personally.

The court found it had jurisdiction to rule on the application as it was fully argued before the suspension was known.

The court ordered the applicant's counsel to personally pay $800 in costs to the respondent due to his failure to address the suspension promptly and communicate with the court, which caused unnecessary delay and expense.

A request to seal the endorsement was denied.

The applicant sought a declaration that a $2 million mortgage registered by the respondent in favour of a related company was void.

The mortgage was registered on the same day a certificate of pending litigation was lifted, while a trial decision regarding a breach of contract claim by the applicant against the respondent was under reserve.

The court found that the mortgage was registered with the intent to defeat or hinder the applicant's ability to collect on a potential judgment, and that the respondent was on the eve of insolvency at the time.

The application was granted and the mortgage was declared void under the Fraudulent Conveyances Act and the Assignments and Preferences Act.

The plaintiff sought costs of $15,975 following a successful summary judgment motion regarding a failed real estate transaction.

The plaintiff argued for partial indemnity costs up to the date of a Rule 49 offer to settle and substantial indemnity costs thereafter, citing the defendant's unsubstantiated allegations of fraud.

The defendant argued for reduced costs due to limited means and alleged partial success.

The court awarded the plaintiff the full $15,975 claimed, finding the Rule 49 offer valid and the defendant's conduct in raising unproven fraud allegations justified an enhanced costs award.

The applicants, parents and trustees of a trust established for their son following a serious brain injury, applied to pass their accounts.

The trust received $418,675.25 over 17 years, but the trustees administered it entirely in cash and lacked receipts for most disbursements.

The court found that the trustees failed to keep proper records and included fictitious loans and unpaid services in the accounts.

While some expenses were allowed, the trustees failed to account for $165,531.14.

After deducting $15,000 for trustee compensation, the court ordered the trustees to repay $150,531.14 to the trust.

Following the dismissal of the applicants' application to enforce a Buyer's Representation Agreement, the successful respondent sought partial indemnity costs of $38,293.35.

The applicants challenged the hourly rates, expert fees, and time claimed.

The court found the hourly rates and expert fees reasonable, but deducted time spent on case conferences related solely to the respondent's witnesses' availability.

The applicants were ordered to pay $35,000 in costs.

Following a successful trial for breach of contract regarding a real estate joint venture, the plaintiff sought costs.

The plaintiff had made a formal offer to settle that was lower than the trial judgment.

Applying Rule 49.10, the court awarded partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

The court found the claimed hours and rates reasonable and ordered the defendant to pay $45,757.27 in costs.

The accused was found guilty of attempted murder and pleaded guilty to aggravated assault after stabbing a man and his girlfriend on a public transit bus.

The victims had intervened to stop the accused from abusing his own girlfriend.

The Crown sought a sentence of 16 to 18 years, while the defence sought 6 years.

The court weighed aggravating factors, including the brutal nature of the unprovoked attack and the accused's criminal record, against mitigating factors such as his guilty pleas, remorse, rehabilitative efforts, and harsh pre-sentence custody conditions during the COVID-19 pandemic.

The court imposed a sentence of 9 years for attempted murder and 3 years concurrent for aggravated assault, less credit for pre-sentence custody.

The applicant builder sought an interim injunction to prohibit the respondent statutory warranty corporation from conciliating delayed occupancy claims made by condominium purchasers.

The builder argued that the delays were caused by a municipal water supply issue and the COVID-19 pandemic, constituting an 'Unavoidable Delay', and that adverse conciliation decisions would irreparably harm its reputation.

The court dismissed the motion, finding no evidence of irreparable harm and concluding that the balance of convenience favoured allowing the statutory body to carry out its mandate to protect new home buyers.

The applicant brought a Charter motion to exclude drugs and money seized from her apartment during a police search.

The police obtained a warrant based on information from confidential informants targeting two other individuals, believing one of them lived with the applicant.

The court found the Information to Obtain (ITO) did not disclose reasonable grounds to believe the target lived at the applicant's address, rendering the warrant invalid and the search a violation of section 8 of the Charter.

Additionally, the police seriously breached the applicant's section 10(b) right to counsel by failing to facilitate contact with her lawyer despite her repeated requests.

Applying the Grant framework, the court concluded the serious, multiple Charter breaches and their significant impact on the applicant's privacy and security interests warranted the exclusion of the evidence.

The offender pled guilty to two counts of knowingly transferring a firearm after using his Possession and Acquisition Licence to purchase and sell handguns for profit.

The Crown sought a five-year sentence, while the offender sought a conditional sentence, arguing the mandatory minimum was unconstitutional.

The court found that a conditional sentence would not adequately address the principles of denunciation and deterrence given the gravity of firearms trafficking.

After weighing the offender's lack of a criminal record, guilty plea, and systemic factors against the seriousness of the offence, the court imposed a sentence of four years in custody.

Following a successful application to enforce an arbitral award requiring a unit owner to replace defective Kitec pipes, the condominium corporation sought full indemnity costs.

The court rejected the argument that the condominium's governing documents automatically entitled it to full indemnity costs, finding that the court retains jurisdiction to determine appropriate costs.

However, the court awarded full indemnity costs of $71,120.97 based on the unit owner's unreasonable refusal to cooperate and his abusive litigation conduct, which included making unfounded allegations and repeatedly ignoring court orders and procedures.

The appellant appealed sentence only after a conviction for sexual assault arising from the assault of a nurse in the course of a nurse-patient relationship.

He argued the sentencing judge failed to adequately explain the refusal of a conditional discharge, overemphasized aggravating factors, underweighted mitigating factors including immigration consequences, and imposed a demonstrably unfit sentence.

The appeal court held that the sentencing reasons, read functionally and contextually, sufficiently explained why a discharge would be contrary to the public interest, particularly given the persistent conduct, workplace setting, impact on the victim, and criminal record.

The court further held that the suspended sentence with 18 months' probation was proportionate and within the range for comparable relatively minor sexual assault cases.