Don C. Wallace

The respondent sought leave to appeal a motion judge's order requiring him to pay $628 per month in child support.

The respondent, who is unemployable due to a childhood brain injury, receives monthly payments from a personal injury settlement fund administered by his mother.

The motion judge imputed an income of $36,000 to the respondent, grossed up to $42,000, effectively treating capital as income.

The court granted leave to appeal, finding good reason to doubt the correctness of the order and noting that the treatment of capital receipts as income for child support purposes is an issue of general importance.

The moving defendant sought security for costs against non-resident plaintiffs arising from an altercation at a lodge that led to civil claims for assault, battery, false imprisonment, mental suffering, breach of contract and negligence.

The responding parties argued that Rule 56 had to be read in light of the Victims’ Bill of Rights, 1995, which bars security for costs unless necessary in the interests of justice.

The court held that pleaded allegations of emotional and psychological harm were sufficient at this stage to establish victim status under the Act without medical or psychological reports.

The motion was dismissed because security for costs was not necessary in the interests of justice, and motion costs were fixed at $2,000 in favour of the responding parties.

Parents appealed a child protection decision finding three children in need of protection under the Child and Family Services Act and ordering Crown wardship without access for two children, with the third placed with the biological father under supervision.

The trial judge had concluded that one or both parents inflicted serious injuries on one child but could not determine which parent was responsible, and that the other parent failed to protect the child.

The appellants argued errors in credibility findings, failure to properly assess evidence, and improper consideration of changed circumstances.

The court held that the trial judge’s findings were supported by the evidence and attracted appellate deference absent palpable and overriding error.

Considering the severity of the injuries and the ongoing risk to the children, the court found that the disposition was in the children’s best interests.

The applicant brought a motion seeking temporary child and spousal support notwithstanding a prior separation agreement.

The respondent sought dismissal of the request, arguing that the agreement governed the parties’ obligations and disputing ongoing child support obligations for adult children attending a performing arts college.

The court held that the validity or repudiation of the separation agreement could not be determined summarily and must be addressed at trial, including any potential review under the principles from Miglin v. Miglin.

On a temporary basis, the court ordered the respondent to resume spousal support payments consistent with the status quo and to continue contributing to child support and extraordinary educational expenses while the children completed their programs.

The order preserved existing arrangements pending trial.

A child protection proceeding under the Child and Family Services Act concerning a seven-year-old child found to be in need of protection.

The Children's Aid Society sought Crown Wardship without access, supported by the Office of the Children's Lawyer.

The mother sought return of the child to her care; the father supported that position and sought access.

The court found that the mother had a long history of mental health issues, emotional instability, substance abuse, and had emotionally abused and neglected the child.

The child had thrived in foster care with relatives and experienced significant anxiety during supervised access with the mother.

The court determined that return to the mother's care was not in the child's best interests and ordered Crown Wardship without access to either parent.

Following a motion in estate litigation, the applicant sought recovery of costs against the estate trustees.

The Superior Court of Justice determined that the applicant was entitled to costs of the motion on a partial indemnity scale.

The court assessed the quantum of recoverable fees, HST, and disbursements and fixed the total amount payable by the respondents.

The endorsement deals solely with the quantification and entitlement to costs arising from the motion.

The applicant sought temporary support from the estate of her late common-law spouse, with whom she cohabited for 34 years.

The court found that the deceased had not made adequate provision for her proper support and that she was in need of financial assistance.

Applying the factors under section 62 of the Succession Law Reform Act, the court ordered the estate to pay temporary support of $1,600 per month, including accumulated arrears.