Ellen B. Murray

The applicant society brought a motion to terminate the father's access to three children in child protection proceedings due to his persistent posting of identifying information about the children on the internet in violation of section 45(8) of the Child and Family Services Act.

The father had posted over 200 videoblogs containing references to family court proceedings, children's aid society involvement, and information that could identify the children through basic Google searches.

The court suspended the father's access and ordered him to remove all identifying postings from the internet, including 22 specific videoblogs and any material that would result in a "hit" when the children's names were entered into Google.

Access could resume only upon compliance with the removal order.

The accused brought a Charter motion alleging that police violated s. 8 of the Canadian Charter of Rights and Freedoms by forcibly entering and searching his residence after responding to a disconnected 9‑1‑1 call.

Officers heard yelling and swearing in the background of the call and received conflicting explanations from occupants who refused to open the door for approximately fifteen minutes.

Police ultimately forced entry to verify whether anyone inside required assistance and conducted a limited search of the residence, discovering cannabis plants.

The court held that under the common law duty to protect life and safety, police were justified in entering the dwelling to investigate a potential emergency.

The entry and subsequent protective search were reasonable and did not breach the accused’s Charter rights.

The plaintiffs brought a motion for leave to amend their statement of claim in a long‑standing breach of contract action relating to highway reconstruction and alleged misrepresentation of available rock quantities.

The defendant Crown opposed a proposed amendment referring to numerous similar contractor claims against the Ministry, arguing the amendment was irrelevant and would trigger extensive documentary production and prejudice.

The court held that evidence of similar claims existing at the time the contract was executed could be relevant to whether the Ministry knew or ought to have known its representations were inaccurate.

However, claims made after execution of the contract were not relevant.

Leave to amend was granted with the limitation that references to post‑contract claims be removed.

In protracted matrimonial litigation, the responding party brought a motion to change prior court orders requiring him to maintain life insurance naming the children as beneficiaries with the other parent as trustee, and also sought reimbursement for alleged unpaid extraordinary expenses under a prior order allocating such expenses between the parties.

The court held that the motion to change lacked merit because the children remained dependants while pursuing university studies and child support obligations continued, making the life insurance requirement appropriate.

The court further found that most claimed extraordinary expenses were unsupported by evidence establishing that they were reasonable and necessary within the meaning of special expenses.

Only limited expenses related to tutoring and eye care were accepted as agreed between the parties.

The responding party’s broader reimbursement claims were dismissed.

The applicant sought a reduction and eventual termination of spousal support obligations under a 2004 separation agreement, requesting retroactive effect from January 1, 2010.

The respondent opposed the reduction and sought payment of amounts owing under a cost-of-living clause.

The court found the respondent was more successful on the key issue of whether the support obligation should be terminated, ordering ongoing spousal support in a step-down manner rather than termination.

The court awarded costs to the respondent, accounting for litigation conduct, tax deductibility of legal fees, and time reasonably spent.

Following an uncontested family law trial after the applicant’s pleadings were struck for failure to comply with disclosure orders, the court determined issues of divorce, child support arrears, spousal support arrears, ongoing spousal support, and equalization of net family property.

The court found the applicant had failed to provide reliable financial disclosure and had attempted to misrepresent his income to avoid support obligations.

Income was imputed to the applicant at $100,000 annually.

The respondent, suffering from serious ongoing medical issues that limited her ability to work, was awarded retroactive child and spousal support, ongoing spousal support, equalization of property, and insurance-related payments.

The plaintiff bank brought a motion for summary judgment to recover amounts owing under a small business line of credit and a personal guarantee.

The defendants argued that the bank had effectively created a new loan with different terms and that the claim against the guarantor was statute‑barred because the guarantee was described as “continuing, absolute and unconditional.” The court found there was no new loan, only an internal reclassification of the same demand credit facility, and the contractual interest rate remained unchanged.

It further held that where a guarantee requires payment on demand, the demand is a condition precedent to liability and to the commencement of the limitation period under the Limitations Act, 2002.

As the demand and action were brought within the limitation period and no genuine issue required a trial, summary judgment was granted.

The respondent father brought a motion to set aside an uncontested family law judgment that had ordered significant child support, spousal support, and arrears following an uncontested trial.

The court found that the respondent had actively participated in the litigation for several years and reasonably believed the matter would proceed through further case management rather than a new application process requiring an answer.

Due to procedural confusion and the absence of clear warning that failure to file an answer would result in an uncontested trial, the court concluded that the respondent was denied procedural fairness.

Applying principles of natural justice, including those articulated in Cardinal v. Director of Kent Institution, the court held that the denial of a fair hearing rendered the decision invalid.

The prior judgment was therefore set aside and the matter directed to proceed toward trial with interim support obligations continuing without prejudice.

The parties separated in 2005 after 17 years of cohabitation.

The applicant mother sought ongoing spousal support.

The court found that the applicant had successfully returned to the workforce and was no longer suffering economic disadvantage from the marriage breakdown.

The claim for spousal support was dismissed.

The court also ordered child support and the proportionate sharing of section 7 expenses for the parties' two children, including post-secondary education costs.

The plaintiff equipment leasing company brought a motion for summary judgment alleging fraud arising from equipment leases entered into with corporate defendants and individuals.

The plaintiff claimed it was induced by false representations to purchase and lease heavy construction equipment, much of which was not recovered after the leases went into default.

One individual defendant asserted she signed documents under the direction of another individual and lacked knowledge of the alleged misrepresentations, raising credibility issues.

The court held that the evidentiary record did not permit a full appreciation of the issues regarding that defendant and required a trial.

However, partial summary judgment was granted against the other individual defendant, who had not defended the action, for the liquidated damages amount.

Multiple motions arose in two related civil actions involving commercial disputes concerning rose-growing agreements and related tort claims dating back to the early 1990s.

The court considered requests to dismiss the actions for delay, set aside a presumed registrar’s dismissal, determine entitlement to funds paid into court as security for costs, and various procedural relief.

The court found that the litigation had been inactive for more than a decade, constituting inordinate and inexcusable delay.

The court also found actual prejudice due to the deterioration of a key witness’s health and the fading of witness memories.

Both actions were dismissed for delay, and funds previously paid into court as security for costs were ordered released to the successful defendants.

The respondent mother moved the child from Ontario to Alberta approximately two months after separation without notice to or consent from the applicant father.

The respondent argued that the court lacked jurisdiction because the child's habitual residence had changed to Alberta.

The court rejected this argument, finding that the child's habitual residence remained Ontario at the time the application was commenced.

The court held that a parent cannot unilaterally change a child's habitual residence by concealing a move and without the consent or acquiescence of the other parent, particularly when the period of de facto care is brief.

The respondent's motion to dismiss for lack of jurisdiction was dismissed.

The applicant father brought a motion seeking leave to continue an action under the Children's Law Reform Act for custody or joint custody of two young children, notwithstanding an automatic stay triggered by the respondent mother's commencement of a divorce action in Superior Court.

The mother had removed the children from Toronto to Goderich without notice and restricted the father's access.

The court dismissed the motion, finding that while the mother's conduct in bringing the divorce action in Goderich (rather than Toronto where the children ordinarily resided) constituted bad faith and tactical maneuvering, the efficiency and economy of consolidating all issues—including property matters requiring Superior Court jurisdiction—in a single forum outweighed the prejudice to the father and children from the delay.

The court noted that urgent motions could be brought in Superior Court within approximately two weeks.

The appellant solicitor appealed a trial judgment ordering him to pay $25,000 plus interest to his former client for professional negligence.

The appellant argued the trial judge misapprehended the evidence and erred in law regarding causation when finding there was a reasonable prospect of setting aside an order dismissing the client's counterclaim.

The Divisional Court dismissed the appeal, finding the trial judge's conclusions were fully supported by the record and that the appellant failed to demonstrate any palpable and overriding error.

The applicant brought a motion to reduce or terminate his spousal support obligations under a 2004 separation agreement, citing his terminal cancer diagnosis, retirement, and the respondent's repartnering.

The court found the agreement permitted a de novo review.

The court imputed income to both parties, finding the applicant had not fully withdrawn from his business and the respondent had not made reasonable efforts to become self-sufficient.

The court also considered the financial benefit the respondent received from her new partner.

Spousal support was reduced in a stepped manner for 2011, 2012, and 2013 onwards.

The applicant's request for retroactive reduction to 2010 was denied, and he was ordered to pay arrears under a cost of living clause.

The applicant sought to reduce his spousal support obligation from $6,000 monthly to $3,000 monthly commencing January 1, 2010, and terminate it as of January 1, 2011, citing his retirement due to prostate cancer.

The respondent opposed the motion and claimed $16,414.84 owing under a cost of living clause.

The court determined this was a de novo review under the separation agreement rather than a variation requiring material change in circumstances.

The court found the applicant had not fully retired from business and imputed 50% of his prior business income.

The court reduced support to $5,000 monthly for 2011, $4,600 monthly for 2012, and $3,900 monthly from 2013 onward.

The court awarded the respondent $9,412.98 for cost of living increases from October 2005 to December 2009.

Pre-trial motion decision in a family law matter concerning a motion to change a prior order that granted the applicant custody of two children and denied the respondent access.

The respondent sought to vary the order based on completion of substance abuse treatment.

The court addressed multiple pre-trial motions including: permission for the applicant and her spouse to participate in cross-examination via Skype from Denmark; disclosure of police records concerning the respondent; extensive mutual disclosure requests; and whether to set aside or stay prior court orders.

The court permitted Skype cross-examination based on financial hardship and the balance of convenience, ordered disclosure of police records with court screening, granted mutual disclosure requests, and stayed the order requiring production of children for supervised access while declining to set aside the original custody order.

The applicant father brought a motion for temporary custody or a shared parenting arrangement of the parties' 20-month-old child.

The respondent mother brought a cross-motion for temporary child support.

The court dismissed the father's motion, finding it in the child's best interests to remain in the primary care of the mother, who offered a more stable plan.

On the issue of child support, the court found the father, a self-employed individual, failed to provide accurate and complete financial disclosure.

The court imputed an annual income of $100,000 to the father and ordered him to pay table child support and a proportionate share of day-care expenses.

The parents in a child protection proceeding requested an adjournment of a scheduled nine-day trial because a parenting capacity assessment, ordered on consent, had not been completed.

The society opposed the adjournment, citing the length of time the child had already been in temporary care.

The court denied the adjournment, finding that the assessment was not necessary for a fair trial and that further delay in permanency planning was not in the child's best interests pursuant to section 70 of the Child and Family Services Act.

A mortgagee brought a motion for summary judgment for possession and recovery of monies owing under a mortgage after a restraint order under the Controlled Drugs and Substances Act was registered on title to the mortgaged property.

The borrower argued the restraint order was analogous to a Mareva injunction and did not constitute a lien or encumbrance triggering default under the mortgage.

The court held that a restraint order under the Act constitutes both an encumbrance and an attachment within the broad contractual definition of “lien” in the mortgage’s standard charge terms.

As the order placed the property under the control of the justice system pending potential forfeiture, its registration amounted to a default under the mortgage.

The mortgagee was therefore entitled to summary judgment.