Carolyn J. Horkins

In a high-conflict family motion arising after a very short marriage, the court addressed interim parenting, travel, matrimonial home possession, disclosure, and support issues.

The moving party was denied permission to travel outside Canada with the child because pending criminal charges and unresolved immigration consequences created a sufficient risk of non-return, but the responding party was permitted to travel abroad with the child during her vacation time.

The court granted the moving party exclusive possession of the matrimonial home under s. 24 of the Family Law Act, finding the child would not be disrupted by relocation and that the evidentiary record favoured interim possession pending trial of competing property claims under a cohabitation agreement.

The responding party's request for a final order implementing OCL recommendations and for child support based on a higher income was dismissed, although interim Guideline support was adjusted.

Outstanding disclosure was ordered and several financial issues were left for trial.

In a family law proceeding arising from a child’s motion, the court refused a late adjournment request brought by the respondent and his partner.

The court held that the absence of historical counsel’s file, alleged deficiencies in the child’s financial disclosure, and incomplete questioning did not justify delaying urgently needed interim child support, particularly where the respondent himself was in breach of disclosure obligations.

The court also dismissed a non-party partner’s motion to add herself and her children as parties, finding they were not proper parties and that any relevant evidence could have been advanced by affidavit.

The motion proceeded without adjournment.

A child brought a motion to vary an earlier interim family law order to obtain interim child support, interim disbursements, DNA testing or alternatively a declaration of parentage, and to vacate a non-contact provision.

The court found a material change in circumstances based on the absence of a pending trial, deterioration in the child’s financial circumstances, the respondent’s continuing disclosure failures, and the respondent’s renewed reliance on paternity uncertainty.

Applying the statutory child support scheme, the court held that the parents’ prior agreement could not bargain away the child’s right to support, imputed income of $200,000 to the alleged father, and ordered interim Guideline support retroactive to April 1, 2014.

After the respondent stated he would refuse DNA testing if ordered, the court drew an adverse inference from that refusal and the surrounding evidence, and made a declaration of parentage.

The court also ordered $50,000 in interim disbursements, vacated the prior non-contact order upon filing of an undertaking, and adjourned the motion to strike the Answer while giving a final deadline for disclosure.

On a motion under Family Law Rule 11(3), the applicant sought to add his former mother-in-law and adult children as respondents and to expand claims arising from alleged misuse of settlement funds and family property following separation and divorce.

The court held there was no limitation period for the support claim against the adult children and permitted that amendment.

The proposed fraudulent conveyance claim concerning one property was found to be governed by a two-year limitation period and was refused as clearly statute barred.

However, the proposed constructive trust and related claims concerning two other properties were allowed because there was a live factual and credibility dispute over discoverability.

The related civil action was ordered transferred to Family Court to be heard together with the family proceeding, subject to the exclusion of the barred Wendell claims.

On a motion to change a final consent order, the moving party sought rescission of child support arrears, repayment of alleged overpaid child support, and retroactive spousal support despite a full and final release.

The court applied the material change framework under s. 17 of the Divorce Act and held that the alleged post-order events, including bankruptcy, delayed tax assessments, licence suspension, and injury, were natural continuations of financial difficulties known when the order and release were executed.

The spousal support claim was additionally barred by the parties' explicit release allocating the risk of any future change, however extreme.

The responding party's cross-motion succeeded only to the extent of fixing child support arrears at $8,791.47.

The Ontario College of Trades moved to set aside an order refusing to quash a summons to witness issued by PowerServe to the Chair of the College's Electrician Ratio Review Panel.

PowerServe sought to examine the Chair regarding his prior professional relationship with a union involved in the review, alleging a reasonable apprehension of bias.

The Divisional Court allowed the motion and quashed the summons, finding that the proposed areas of inquiry were either irrelevant, amounted to a fishing expedition, or would require the disclosure of communications protected by solicitor-client privilege.

The appellant lawyer appealed the Law Society Tribunal Appeal Division's decision to revoke his licence for professional misconduct.

The appellant argued that the penalty was disproportionate because the most serious charge of misappropriation was dismissed, and his misconduct was caused by severe depression.

The Divisional Court dismissed the appeal, finding the Tribunal's decision reasonable.

The Court noted that the appellant's failure to acknowledge his dishonest conduct undermined his psychiatric evidence and failed to reassure the public and the profession of his integrity.

The applicant sought a refraining order preventing the Family Responsibility Office from suspending his driver's licence and initiating a federal passport denial application in relation to alleged spousal support arrears.

The motion arose in unusual circumstances because the applicant asserted that signed Minutes of Settlement finally resolved support and extinguished arrears, and alternatively sought retroactive variation based on a substantial post-order income decline and credit for prior undisclosed payments.

The court held that it had jurisdiction to grant relief in relation to both the provincial licence suspension regime and the federal passport denial regime, rejecting the position that the federal statute barred such an order.

On the evidence, the applicant established a prima facie case, demonstrated that loss of his licence and passport would impair his ability to earn income and care for the children residing with him, and obtained the refraining order subject to continued support payments under the Minutes of Settlement.

The appellant, a residential tenant, sued her landlord in Small Claims Court for negligence after her unit was burglarized via an adjacent unlocked unit.

The Deputy Judge dismissed the action, finding the essential character of the dispute fell within the exclusive jurisdiction of the Landlord and Tenant Board.

On appeal, the Divisional Court upheld the decision, confirming that the claim essentially alleged a breach of the landlord's statutory obligations regarding safety and quiet enjoyment.

The court also refused to transfer the matter to the Superior Court, as the one-year limitation period under the Residential Tenancies Act had already expired when the Small Claims action was commenced.

The applicant brought a family law motion to strike one respondent's Answer and Counterpetition based on persistent non-compliance with court orders, longstanding child support arrears, failure to pay prior costs, and incomplete financial disclosure.

The court held that striking pleadings in a family case is reserved for exceptional circumstances where no other remedy would suffice, and found that threshold met.

The responding party was given a fair opportunity to respond but failed to provide admissible evidence explaining his conduct.

The court struck the pleadings, imposed the consequences under Rule 1(8.4), and awarded the applicant $8,000 in full indemnity costs.

The applicant sought judicial review of an Ontario Municipal Board decision that dismissed parts of her appeal regarding a municipal Official Plan.

The Divisional Court dismissed the application on the basis that the applicant had an adequate alternative remedy.

Specifically, the applicant failed to request a review or rehearing under section 43 of the Ontario Municipal Board Act, which provides a statutory mechanism to address her claims of procedural unfairness.

The court noted that allowing the judicial review would undermine the legislative scheme, which requires leave to appeal Board decisions.

The defendants sought leave to appeal two interlocutory orders compelling their witness to answer questions refused on cross-examination and refusing to vary the initial order.

The court found that the first category of questions was moot because the witness had already answered them without condition.

The court also held that the defendants failed to satisfy the test for leave to appeal under Rule 62.02(4) for both categories of questions, as there were no conflicting decisions and the issues were not of such importance to warrant leave.

The motion for leave to appeal was dismissed.

The tenant appealed a Landlord and Tenant Board order terminating his tenancy and requiring him to pay for damages to an electrical panel.

The tenant argued he was denied an opportunity to participate because he mistook the date of the continuation hearing, and that the Board was biased.

The Divisional Court dismissed the appeal, finding the tenant had received proper notice of the hearing and the Board was entitled to proceed in his absence under the Statutory Powers Procedure Act.

The Court also found ample evidence supported the Board's conclusion that the tenant wilfully damaged the electrical panel.

The applicant brought a motion to set aside an order quashing his application for judicial review of an arbitrator's decision upholding his termination.

The applicant argued he was denied procedural fairness because his union failed to provide a Somali interpreter at the arbitration hearing, which he claimed fell under the deficient representation exception to the rule against individual standing.

The Divisional Court dismissed the motion, finding no error in the motion judge's conclusion that the evidence did not support the need for an interpreter and noting the applicant's proper remedy was before the Ontario Labour Relations Board.

The applicant sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision that rejected his claim that s. 43(1)(c) of the Workplace Safety and Insurance Act, 1997 violated s. 15(1) of the Charter.

The impugned section limits loss of earnings benefits to two years for workers injured at age 63 or older.

The Divisional Court upheld the Tribunal's decision, finding that the provision did not discriminate on the basis of age as it did not create a disadvantage based on prejudice or stereotyping.

The court further held that even if the provision violated s. 15(1), it would be saved under s. 1 of the Charter.

The application for judicial review was dismissed.

The applicant insurer sought judicial review of a Director's Delegate's decision which found that the respondent insured was not precluded from proceeding to arbitration.

The insurer had denied the insured's claim for a non-earner benefit but failed to provide a copy of the medical report it relied upon until more than two years later.

The Divisional Court held that the Director's Delegate's decision was reasonable, as the failure to provide the medical report meant the insurer provided incomplete reasons for the denial, and thus the two-year limitation period did not commence until the report was finally provided.

The appellant lawyer appealed a decision of the Law Society Appeal Panel revoking his license to practice law after he was found to be ungovernable.

The appellant argued that the panels misapprehended evidence regarding his remorse, character, discipline history, and a proposed supervision plan, and failed to consider systemic racism.

The Divisional Court dismissed the appeal, finding that the disciplinary panels' decisions were reasonable, entitled to deference, and that the appellant failed to establish a causal connection between his race and the professional misconduct.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing her application for delay.

The applicant's late husband was denied a liver transplant due to a policy requiring six months of abstinence from alcohol.

The applicant filed her human rights complaint almost two years later, arguing she did not know the policy was discriminatory until then.

The Divisional Court upheld the Tribunal's decision, finding it reasonable to conclude that ignorance of the law does not constitute a good faith explanation for delay under section 34(2) of the Human Rights Code.

The appellant property assessment corporation appealed a decision declaring a student residence located on a college campus exempt from property taxation.

The college had entered into a 99-year land lease with a private developer to construct and operate the residence.

The Divisional Court allowed the appeal, finding that the application judge erred in concluding the college was the tenant of the land.

The Court held that the private developer was the tenant and paramount occupier of the land, making it liable for property taxes under the Assessment Act, and that the college lost its specific tax exemption when it ceased to solely occupy the land.

The appellant building mortgagee appealed an order confirming a Master's report in a construction lien priority dispute.

The Master found that the appellant's $25,000 mortgage advance was made on November 19, 2009, giving the respondent lien claimant priority, based on a formal admission of fact that the appellant was refused leave to withdraw.

The Divisional Court dismissed the appeal, holding that the motion judge correctly applied the standard of review and that the formal admission of fact was conclusive.