Ellen B. Murray

The respondent father moved to set aside or vary a warrant of committal issued for non-payment of child support arrears of $170,505, and a final default order.

The respondent did not attend the committal hearing on September 24, 2012, despite having notice.

The court considered whether the motion should be granted under Rule 25(19) of the Family Law Rules or Rule 19.08 of the Rules of Civil Procedure.

The court found that while the respondent failed to meet all three prongs of the traditional test for setting aside a default order, the interests of justice favoured varying the committal order to reflect time served, particularly given serious doubts about the validity of the underlying support order that was the subject of enforcement.

The appellant appealed convictions for three counts of assault arising from two altercations outside a warehouse.

The appeal court found the trial judge made material factual findings unsupported by the evidence, including concluding the incident was a planned attack despite both parties agreeing no evidence supported that conclusion.

The court also held the trial judge’s reasons were inadequate, failing to address conflicting evidence, the issue of consent, and key credibility determinations.

The reasons were so deficient that meaningful appellate review was impossible and the reasoning process leading to conviction could not be understood.

The court held the errors created a substantial risk of miscarriage of justice and rendered all convictions unsafe.

Following a 25‑year marriage, the applicant sought retroactive and ongoing spousal support after a partial settlement resolved property issues.

The respondent had relocated to Spain for the same employer at a similar base salary but with lower overall earnings due to different overtime compensation policies.

The applicant argued the relocation constituted intentional underemployment and that support should be based on the respondent’s former Canadian income.

The court held that the move to Spain was reasonable and did not amount to intentional underemployment.

Applying the Spousal Support Advisory Guidelines and imputing income to the applicant during and after her paralegal training, the court ordered retroactive and ongoing spousal support and required the respondent to maintain life insurance naming the applicant as beneficiary.

The appellant appealed a conviction for driving with excess blood alcohol under s. 253(1)(b) of the Criminal Code, arguing that the trial judge misapprehended evidence regarding language comprehension, that the roadside demand was not made “forthwith,” and that police lacked reasonable suspicion to demand an approved screening device test.

The court held that police took reasonable steps to ensure the accused understood his rights, including arranging consultation with a Punjabi-speaking lawyer before breath samples were taken.

The delay in administering the screening test while awaiting the device was reasonably necessary and did not provide a realistic opportunity to consult counsel prior to the roadside demand.

The officer’s observations of erratic driving, odour of alcohol, bloodshot eyes, and admission of recent drinking constituted objectively reasonable grounds for suspicion.

The appeal was dismissed.

A child protection case in which the Catholic Children's Aid Society of Toronto brought a summary judgment motion seeking a declaration that a child (W.R.) was in need of protection and an order making the child a Crown ward for the purpose of adoption.

The respondent parents opposed the motion and presented alternative plans for the child's care.

The court found no genuine issue requiring trial and granted the Society's motion, making the child a Crown ward.

The court declined to grant access to the parents, finding that they had not met the statutory test for access to a Crown ward.

The landlord brought a motion for summary judgment seeking unpaid rent, damages, and dismissal of the tenant’s counterclaim following termination of a commercial lease for alleged rental arrears.

The tenant denied arrears, disputed the landlord’s calculations, and brought a cross‑motion for summary judgment claiming the termination was wrongful and seeking damages.

The court applied the summary judgment framework from Combined Air Mechanical Services Inc. v. Flesch and found numerous factual disputes concerning rent calculations, alleged credits, additional charges, and whether the landlord had the right to terminate the lease.

Because a full appreciation of the evidence could not be achieved on the motion record, the matter required a trial.

Both parties’ motions for summary judgment were dismissed.

Counter-applicants sought relief relating to a commercial property, including vacating an existing Certificate of Pending Litigation (CPL) registered by the applicants and obtaining leave to register their own CPL.

The moving parties alleged they advanced substantial funds to entities controlled by an individual who promised mortgage security but failed to properly register it, and that fraudulent transfers of mortgage interests had occurred.

The court found that the counter-applicants had demonstrated a reasonable claim to an interest in land and that there remained triable issues regarding the validity of the mortgage interests.

Although the applicants had not prosecuted their claim diligently, the court declined to discharge the existing CPL at this stage given the procedural posture and ongoing litigation.

Leave was granted to the counter-applicants to issue a CPL while the earlier CPL remained in place.

A young person charged with multiple firearms offences brought a motion to stay the charges based on a violation of his Charter right under section 11(b) to be tried within a reasonable time.

The total delay was 15.7 months from the laying of charges on December 10, 2011 to the scheduled trial commencement on March 25, 2013.

The court applied the analytical framework from R. v. Morin and considered the length of delay, any waiver, reasons for delay, and prejudice to the accused.

The court found that the delay was attributable to the inherent time requirements of the case and was neutral as against both the Crown and the defendant.

The court also found that any prejudice suffered by the defendant due to restrictive bail conditions did not outweigh society's interest in having serious firearms charges tried on the merits.

The motion to stay was dismissed.

A youth was charged with two counts of aggravated assault and two counts of possession of a dangerous weapon arising from stabbings that occurred outside a banquet hall during a party.

The Crown relied primarily on eyewitness identification evidence, including an in-dock identification by one victim.

The defence challenged the reliability of the identification evidence, citing cross-racial identification, brief observation time, and improper police identification procedures.

The court found the Crown had not proven guilt beyond a reasonable doubt and acquitted the accused on all charges.

Following the breakdown of a long marriage in which the parties jointly operated a highly successful real estate partnership, the applicant sought retroactive and ongoing spousal support.

The respondent unilaterally terminated the partnership, retained all commission income earned in 2011, and diverted partnership records and client lists, significantly impairing the applicant’s ability to continue in the business.

Although the applicant later chose to pursue a less profitable clothing business, the court held she was not entitled to ongoing spousal support because she voluntarily left a lucrative career in which she had demonstrated strong earning capacity.

However, the court found that transitional support was warranted due to the respondent’s unilateral termination of the partnership and the immediate economic disadvantage suffered by the applicant.

Lump‑sum transitional spousal support of $200,000 was ordered, along with ancillary orders relating to corporate asset distribution and trust funds for potential tax liabilities.

The respondent father brought a motion to change a final order after the parties' two children moved to reside primarily with him.

The parties consented to the change in primary residence and the applicant mother's new obligation to pay child support.

The applicant brought a cross-motion seeking retroactive increases to child and spousal support for the period before the children moved, arguing the respondent's income had increased due to overtime and bonuses.

The court dismissed the cross-motion, finding that the respondent had paid child support in accordance with the existing order, and that the fluctuations in his income were contemplated by the parties when they agreed to the original spousal support terms, thus not constituting a material change in circumstances.

The applicant brought a motion to change a 2003 consent order respecting child support, seeking retroactive support and section 7 expenses.

The court considered whether there had been a material change in circumstances under the Divorce Act sufficient to justify variation of the consent order.

The applicant argued that the respondent’s increased income justified guideline child support retroactively.

The court held that the income increases were foreseeable and contemplated by the parties when the consent order was made and therefore did not constitute a material change in circumstances.

The motion to change was dismissed, although the respondent agreed to pay a modest retroactive amount and ongoing child support pursuant to the existing terms.

The applicant brought a motion to change prior support orders relating to spousal and child support following divorce.

The respondent sought an order striking the motion due to the applicant’s repeated failure to attend court proceedings, comply with costs orders, and pay support obligations.

Evidence established substantial arrears in child and spousal support and section 7 expenses.

The court found the applicant had effectively abandoned his motion and that his non-compliance with court orders justified striking his pleadings.

The respondent was awarded full indemnity costs and section 7 expenses, with amounts ordered enforceable as spousal support through the Family Responsibility Office.

The defendant physician brought a motion to strike portions of the plaintiffs’ amended statement of claim in a medical negligence action alleging negligent antenatal care during a twin pregnancy.

The impugned pleadings alleged similar fact evidence relating to alleged negligence involving other patients and asserted breach of fiduciary duty based on the physician’s failure to disclose complaints, regulatory proceedings, and lawsuits against him.

The court held that the similar fact allegations contained no material facts demonstrating a real and substantial nexus to the alleged negligence and were scandalous and vexatious.

References to complaints before the College of Physicians and Surgeons were also inadmissible under s. 36(3) of the Regulated Health Professions Act, 1991.

The court further found there is no legal duty requiring physicians to disclose prior complaints or lawsuits to patients, rendering the fiduciary breach allegations untenable.

The impugned paragraphs were struck from the amended statement of claim.

The plaintiff subcontractor brought a motion for summary judgment seeking payment allegedly owed by the defendant general contractor on several construction projects and also sought an order requiring the defendant, as plaintiff by counterclaim, to post security for costs.

The court held that the plaintiff failed to meet the evidentiary burden required on a summary judgment motion.

The affidavit evidence provided only conclusory assertions regarding amounts owed and failed to set out the contractual framework, the work performed, or proof supporting the claimed entitlement to payment.

Applying the principles governing summary judgment motions, the court found the plaintiff had not put its best foot forward and had not provided a record capable of permitting adjudication on the merits.

The request for security for costs was also denied due to the absence of a factual foundation.

The appellant appealed convictions for assault with a weapon and uttering a death threat arising from a domestic incident.

At trial, conflicting evidence was presented regarding a prior incident involving the complainant, the accused, and responding police officers, raising significant credibility issues.

The trial judge acknowledged the conflicts but declined to make findings about them, instead concluding the complainant was credible and convicting the accused.

On appeal, the court held that the credibility assessment could not properly be made without resolving the contradictions between the complainant’s testimony and the police evidence.

The failure to consider and make findings on these material conflicts constituted a palpable and overriding error affecting the safety of the convictions.

A new trial was ordered.

Sentencing decision following guilty pleas to three counts of breaking and entering a dwelling house and committing theft, possession of stolen property under $5000, and public mischief.

The offences involved multiple residential break-ins, including one committed while the offender was bound by recognizance and probation conditions and where the dwelling was occupied at the time.

The court emphasized the serious violation of the sanctity of the home and the aggravating factor under s. 348.1 of the Criminal Code when a dwelling is occupied.

Balancing denunciation and deterrence with mitigating factors including lack of prior record, remorse, and supportive family circumstances, the court imposed a custodial sentence.

The offender received concurrent nine‑month custodial terms followed by probation with strict conditions.

This is a child protection trial concerning access to two Crown ward children (L., born 2004, and B., born 2006) following their apprehension in December 2009 and Crown wardship order in December 2011.

The mother sought increased access; the father sought bi-weekly eight-hour visits.

The Society opposed any access order, planning adoption.

The court found the children's relationship with their mother was beneficial and meaningful but that both parents failed to establish that an access order would not impair the children's future opportunities for adoption.

The mother's continued desire to have the children returned and lack of acceptance of adoption, combined with the father's inconsistent presence and mental health issues, led to the dismissal of both parents' access requests.

The plaintiff bank brought a motion for summary judgment against the defendant guarantor for $145,000 based on a 2002 personal guarantee of a corporate loan.

The defendant argued that a subsequent 2005 guarantee for $150,000, which had been satisfied by the sale of a mortgaged property, was meant to replace the 2002 guarantee.

The court rejected this argument, noting the clear language in the guarantee stating it was in addition to and not in substitution for any other guarantee.

Finding no genuine issue for trial, the court granted summary judgment in favour of the bank.

A young person was convicted of theft over $5,000, forcible confinement, use of an imitation firearm during robbery, and two counts of failure to comply with a recognizance, all arising from a home invasion on July 26, 2010.

The Crown sought a serious violent offence designation and 24 months custody and supervision followed by three years probation.

The defence argued against the SVO designation and sought a non-custodial sentence or deferred custody.

The court found the offences constituted a serious violent offence, imposed a custodial sentence of 24 months custody and supervision (16 months secure, 8 months open) followed by 24 months probation, and imposed various conditions including no contact with victims, community service, and a weapons prohibition.