Daniel Bernstein

The appellant sought leave to appeal an order granting the respondent exclusive possession of the matrimonial home under s. 24(3)(f) of the Family Law Act based largely on hostile and threatening text messages sent during the parties’ separation.

The appellant argued the motion judge misapplied the law and that conflicting case law required more than text messages to establish “violence.” The court held that differing outcomes in other cases reflected discretionary factual determinations rather than conflicting legal principles.

The court found no reason to doubt the correctness of the original order and held that intimidation or psychological abuse conveyed through text messages can constitute violence depending on the factual context.

Leave to appeal was therefore denied.

Following a family law motion in which the applicant obtained exclusive possession of the matrimonial home, the court considered the appropriate costs award.

The applicant sought full recovery alleging bad faith arising from the respondent’s failure to provide timely financial disclosure.

The court declined to find bad faith, holding that the evidentiary record did not establish an intent to deceive or conceal information.

Although the applicant was the successful party, the court found her conduct partially unreasonable for failing to serve an offer to settle and for serving key affidavit evidence only two days before the motion.

Costs were reduced accordingly and a partial recovery awarded.

The applicant sought interim spousal and child support, section 7 expenses, and a preservation order.

The parties lived a lavish lifestyle during the marriage, funded by a mix of income and capital.

Due to the respondent's inadequate financial disclosure, the court imputed an income of $250,000 for child support purposes and ordered combined interim support of $20,000 per month, recognizing the respondent would need to encroach on capital to pay it.

The request for a preservation order was dismissed to allow the respondent to utilize capital for support.

An investor sued a discretionary portfolio manager and its representatives for breach of fiduciary duty, negligence, and breach of contract after the manager failed to promptly diversify an inherited, highly concentrated equity portfolio heavily weighted in Nortel, BCE, and TD shares.

The court found the manager knew diversification was the client's objective but failed to implement it or clearly communicate any staged diversification strategy or associated risks.

The court held that maintaining the concentrated portfolio for several months without proper disclosure or client agreement breached the manager’s duties of care and contractual obligations.

However, individual defendants without trading authority were not liable.

Damages were assessed based on a diversified portfolio consistent with the client’s Investment Policy Statement.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The respondent was ordered to pay the appellant's costs of the appeal fixed at $7,500, inclusive of disbursements and HST, as well as the costs of the motion below fixed at $5,000.

The parties entered into a separation agreement requiring spousal support variations to be dealt with by arbitration.

After the husband stopped paying support, the wife filed the agreement for enforcement under s. 35 of the Family Law Act.

The husband then applied to the Superior Court to vary support and moved under the Family Responsibility and Support Arrears Enforcement Act to prevent the suspension of his driver's licence.

The motion judge held the court had jurisdiction to vary support because the wife sought enforcement under the Family Law Act.

The Court of Appeal allowed the wife's appeal, holding that neither the Family Law Act nor the Enforcement Act supersedes a valid domestic contract's exclusive arbitration provision.

On a motion for interim spousal support following a 24‑year marriage, the court considered how to determine income where the payor spouse’s earnings fluctuated significantly due to cyclical real estate development projects.

The applicant argued that support should be based on a multi‑year average exceeding $2 million annually, while the respondent claimed current income of approximately $214,000.

The court rejected both extremes, finding the unusually high income in certain years was anomalous but also concluding the claimed post‑separation income decline was not adequately supported.

Considering historical earnings patterns, capital gains history, and the respondent’s own spending levels, the court imputed income in the range of $700,000–$800,000 for interim purposes.

Interim spousal support was fixed at $25,000 per month and made retroactive to January 1, 2012.

The plaintiff brought an urgent motion seeking injunctive relief and an Anton Piller order against former employees and a competing corporation.

Evidence indicated that one former employee downloaded thousands of confidential corporate files prior to leaving employment and that the defendants were using the information to compete for the plaintiff’s principal customer.

Applying the three‑part test for interlocutory injunctions under the Courts of Justice Act and the Rules of Civil Procedure as articulated in RJR‑MacDonald Inc. v. Canada (Attorney General), the court found a serious issue to be tried, irreparable harm to the plaintiff’s business, and that the balance of convenience favoured the plaintiff.

The court held that the defendants’ conduct arguably breached contractual confidentiality obligations, restrictive covenants, and duties of confidence.

Injunctive relief restraining the defendants’ conduct was granted.

The applicant mother brought an interim motion seeking sole custody, exclusive possession of the matrimonial home, and substantial retroactive child and spousal support based on an imputed income of $700,000 to the respondent father.

The court declined to determine custody on the limited interim record but confirmed that the child would primarily reside with the mother in the matrimonial home.

The request for exclusive possession was denied because the evidence did not establish that the father’s continued presence posed a threat to the child’s best interests under s. 24 of the Family Law Act.

The court assessed the father’s interim income at $325,000 and ordered table child support and high-range spousal support under the Spousal Support Advisory Guidelines, retroactive to November 1, 2011.

Requests for section 7 expenses and further disclosure were deferred.

The appellant, a former employee of a Toronto Stock Exchange (TSE) member, appealed a decision of the Ontario Securities Commission (OSC) which upheld a ruling by Market Regulation Services Inc. (RS).

The OSC found that the Universal Market Integrity Rules (UMIR) were enforceable against the appellant for conduct that occurred during his employment, despite his subsequent resignation.

The Divisional Court dismissed the appeal, finding it reasonable for the OSC to conclude that the TSE validly adopted the UMIR and that RS had jurisdiction to discipline former employees for misconduct committed while they were employed by a TSE member.

David Berry, a former employee of Scotia Capital Inc., applied for a hearing and review of a decision by a hearing panel of Market Regulation Services Inc. (RS) that dismissed his motion to stay an RS proceeding against him.

Berry argued that the Universal Market Integrity Rules (UMIR) were not validly adopted by the TSX and that RS lacked jurisdiction over him as a former employee.

The Ontario Securities Commission dismissed the application, finding that UMIR are rules of RS, approved by the Commission, and enforceable against TSX Participants and their employees.

The Commission also held that the TSX Act provides the basis for RS's jurisdiction to proceed against Berry as a former employee.

The appellant commenced an action alleging the respondents conspired to falsely accuse him of fraud, while criminal proceedings against him for that fraud were ongoing.

The motion judge struck the claim, characterizing it as malicious prosecution lacking the essential element of a favourable determination in the criminal proceedings.

The Court of Appeal upheld the decision, finding that even if framed as conspiracy to injure, the claim could not proceed in the face of ongoing criminal proceedings.

The appeal was dismissed and the claim struck in its entirety.

TSX Inc. sought intervenor status in a hearing and review requested by the respondent regarding a decision of Market Regulation Services Inc. (RS).

The respondent had challenged the validity of the Universal Market Integrity Rules (UMIR) and the TSX's delegation of market regulation to RS.

The Commission granted TSX limited intervenor status, finding that the TSX had a direct interest in the proceeding because its market regulation and enforcement regime was being challenged, and that its participation would be useful without unfairly prejudicing the existing parties.

The Requesting Parties sought a hearing and review by the Ontario Securities Commission of the TSX's filing of amendments to the Universal Market Integrity Rules (UMIR) and the Director's acceptance of that filing.

Market Regulation Services Inc. (RS) brought a motion to quash the request, arguing it was moot, premature, and that the RS Hearing Panel had jurisdiction to decide the issues in the first instance.

The Commission held that there was no reviewable decision under sections 8 or 21.7 of the Securities Act, though it retained overriding supervisory jurisdiction under section 21(5).

The Commission declined to exercise its discretion to hear the matter, finding that the application was premature and would unduly fragment the ongoing RS disciplinary proceeding.

The Commission remitted the matter back to the RS Hearing Panel to determine the validity of the UMIR amendments.

The Court of Appeal issued a costs endorsement following an appeal.

The court made no order as to the costs of the motion before the motion judge, as no submissions were made and the issue was not raised at the Divisional Court.

The Divisional Court's costs order was maintained.

The court fixed the costs of the appeal at $10,000 each for the MFP respondents and the Bondy Riley respondents, inclusive of disbursements and GST.

The appellants commissioned an investigative report in preparation for a fraud action.

A senior official mistakenly believed a former lawyer for the appellants was still part of their legal team and sent him a copy of the report to review as a potential witness.

The appellants later added the lawyer's former firm as a defendant in the action without first retrieving the report.

When the appellants demanded the return of the report claiming litigation privilege, the lawyer refused.

The Court of Appeal held that while the initial disclosure did not waive privilege against the adversaries, the appellants lost the right to assert privilege over the document in the lawyer's hands once they sued his firm without first demanding its return.

Staff of the Ontario Securities Commission alleged that the respondents, including Leslie and Douglas Brown, engaged in unregistered trading and illegal distribution of securities related to 'F.E.D.I. desks' at an investment seminar.

The Browns had invited friends to the seminar and introduced the main speaker, but did not receive compensation or act on behalf of the promoter.

The Commission found that the Browns' actions did not constitute acts in furtherance of a trade, as they were not acting to promote the sale on behalf of the seller.

The allegations against the Browns were dismissed.