Christopher R. Martin

A pre-trial motion concerning the admissibility and use of will-say statements prepared by counsel for the applicant's witnesses.

The respondent sought an order permitting cross-examination of the witnesses on their will-says, or alternatively, requiring the statements to be translated and signed by the witnesses, or permitting cross-examination of the applicant on the preparation of the statements.

The court dismissed the motion, finding that the will-say statements were provided in compliance with the undertakings given, were sufficiently detailed and meaningful, and that the respondent was not prejudiced by their late service.

The court clarified the proper use of will-say statements as disclosure tools rather than evidence, and protected communications between the applicant and her counsel regarding the preparation of the statements under solicitor-client privilege.

This motion in a negligence action addressed the defendant's request for orders compelling the plaintiff to attend medical assessments, complete questionnaires, and sign consent forms, as well as to adjourn pre-trial and trial dates.

The plaintiff had refused to comply, relying on prior case law.

The court vacated the pre-trial and trial dates due to non-compliance with Rule 53.03(2.2) regarding expert report schedules.

The court ordered the plaintiff to sign consent forms and complete questionnaires, finding that section 105(5) of the Courts of Justice Act mandates answering relevant questions and that the court has inherent jurisdiction to control the discovery process, distinguishing prior cases that suggested a complete code.

The motion for the assessments themselves was adjourned as premature.

Following a seven-day trial on the issue of regular access, the court determined the appropriate parenting schedule for a three-year-old child.

The mother, who had primary residency by agreement, sought to limit the father's access to two overnights every fourteen days, citing past incidents of domestic violence and concerns about his parenting.

The court found that while three incidents of violence did occur during the relationship, the father is a capable and loving parent.

Applying the maximum contact principle, the court ordered an expanded access schedule for the father, including mid-week overnights, tailored to accommodate his continental shift work schedule.

A custody trial concerning Jamie Suzanne Wilson, born September 29, 2008, whose parents separated in June 2010.

The applicant mother sought custody with the child residing in Oakville, while the respondent father sought custody with the child residing in Hamilton.

The court awarded joint custody with the child's principal residence in Hamilton with the father, with midweek access to the mother and every other weekend during the school year.

The decision considered the child's best interests under the Children's Law Reform Act, including emotional ties, family support systems, practical parenting arrangements, and school stability.

The applicant mother brought a motion to stay a trial judge's order that changed the primary residence of the child to the respondent father and required the child to attend school in Hamilton.

The trial judge had issued a handwritten endorsement without providing reasons for judgment.

The court found it had jurisdiction to hear the motion under subrule 38(35) of the Family Law Rules.

Applying the three-part test for a stay pending appeal, the court found a serious issue to be tried due to the lack of reasons and potential misapprehension of evidence, irreparable harm to the child if forced to change schools and primary caregivers abruptly, and that the balance of convenience favoured the mother.

The motion to stay was granted, returning the child to the mother's primary care and her previous school in Oakville pending the appeal.

The applicant mother brought a motion to stay an order of Justice Flaherty dated August 30, 2013, which changed the primary residence of the child from a shared parenting arrangement to the respondent father in Hamilton, reducing the mother's access to one evening per week and alternate weekends.

The mother alleged procedural unfairness due to the trial judge's hearing difficulties, misapprehension of evidence, and failure to give proper weight to the Office of the Children's Lawyer's recommendations.

The court granted the stay, finding a serious issue for appeal, irreparable harm to the child, and that the balance of convenience favored the child's return to her mother's primary care in Oakville pending the appeal.

The applicant sought costs for a successful motion regarding school placement for a child in a shared parenting arrangement.

The applicant was awarded costs of $3,000.00 inclusive of disbursements and taxes.

The court determined that the applicant was the successful party on the only issue before it—the choice of school—and that costs should be awarded at a level approaching substantial recovery rather than full recovery, as the applicant's offer to settle included terms the court declined to rule on and was therefore not as favourable as the court's ruling.

The applicant brought a motion to vary a prior consent order seeking permission to relocate the children’s primary residence to the United Kingdom and to impute higher income to the respondent for child and spousal support.

The respondent opposed relocation and sought a variation providing that the children reside primarily with him if the applicant moved, while also requesting support be calculated based on his current income.

Applying the best interests test and the framework from Gordon v. Gertz, the court found the applicant’s reasons for relocation compelling, including immigration limitations preventing employment in Canada, lack of family support in Ontario, and available family and medical support in the United Kingdom.

The court accepted the respondent’s evidence that his current income was $135,000 and declined to impute income at the higher historical level.

The applicant was permitted to relocate with the children, subject to liberal and generous access arrangements for the respondent.