F. Bruce Fitzpatrick

Competing summary judgment motions arose from disputes over several properties allegedly subject to trust arrangements and financial contributions.

The moving party sought summary judgment transferring two Ontario properties based on trust agreements, while the opposing parties sought to strike the action in favour of a separate application.

The court held that material factual conflicts regarding alleged breaches of trust payment obligations and the interpretation of the trust agreements required a trial.

Claims relating to two other Ontario properties were dismissed as statute‑barred under the Limitations Act, 2002 and barred by res judicata following dismissal of an earlier action.

Claims regarding a foreign property were dismissed for lack of jurisdiction and because the property had never been transferred to the defendants.

Following a multi‑day family trial, the court determined custody, child support, and equalization of property between separated spouses.

The applicant alleged parental alienation and sought sole or joint custody, while the respondent sought continuation of an interim order granting her sole custody.

The court found no evidence that the respondent obstructed the applicant’s relationship with the children and accepted recommendations from the Office of the Children’s Lawyer to maintain sole custody with defined access.

For child support purposes, the court imputed additional income to the applicant due to undeclared cash and in‑kind payments and set support under the Federal Child Support Guidelines.

On property division, the court determined that a cottage held in the respondent’s name was held in trust for her parents and excluded it from net family property, resulting in an equalization payment owed by the respondent to the applicant.

The parties separated after a 12-year marriage governed by a marriage contract.

At trial, the court addressed issues including the designation of a pension survivor benefit, division of the proceeds from the sale of the matrimonial home, claims for rent and depletion of assets, and a claim for spousal support by the respondent.

The court dismissed the applicant's request to declare the pension designation irrevocable.

The court also dismissed the respondent's claim for a priority share of the home sale proceeds, finding that his contribution from previously excluded property lost its excluded character when used to purchase a jointly held asset.

The respondent's claims for asset depletion and spousal support were dismissed, though he was awarded a share of rental income.

The proceeds of the home sale were ordered to be divided equally, subject to minor adjustments.

A respondent in a family law proceeding brought a motion to vary existing temporary child and spousal support orders on the basis that one child had completed post-secondary education and that the parties’ employment circumstances had changed.

The other party brought a cross‑motion seeking to strike the respondent’s pleadings due to support arrears and unpaid costs and requested additional section 7 expenses.

The court terminated child support for the adult child, adjusted child support for the remaining child based on updated income figures, and reduced spousal support in accordance with the Spousal Support Advisory Guidelines midpoint.

The court declined to add further section 7 expenses and refused to strike the respondent’s pleadings.

Both motions were otherwise dismissed and no costs were awarded.

The plaintiffs and defendants were co-owners of a yacht.

The defendants, acting as trustees, listed the yacht for sale with a broker.

The broker sold the yacht but subsequently entered receivership before distributing the full proceeds.

Prior to the bankruptcy, the defendants managed to recover $114,628.80 from the broker, which they deposited into their own business account.

The plaintiffs sued for their share of the proceeds.

The court found that while the defendants did not breach their trust duties in hiring the broker or leaving the funds there during settlement negotiations, they remained trustees of the recovered funds.

The court ordered the defendants to pay the plaintiffs half of the recovered amount, as the third co-owner abandoned his claim.

Following judgment in favour of the plaintiffs against two defendants jointly and severally for damages arising from a civil claim, the plaintiffs sought a supplementary endorsement addressing pre-judgment interest.

The statement of claim included a request for pre-judgment interest under the Courts of Justice Act.

The court confirmed that the plaintiffs were entitled to pre-judgment interest at the statutory rate.

Judgment was therefore amended to include pre-judgment interest at 4.5% on the damages award commencing from the date the statement of claim was issued.

The accused was charged with sexual assault and sexual interference involving a child.

The case turned primarily on the credibility of the complainant, who alleged multiple acts of penetration and sexual touching while staying overnight at a residence where the accused lived.

Despite several inconsistencies between the complainant’s trial testimony and earlier statements to police and at the preliminary inquiry, the court found the inconsistencies did not undermine the essential allegation of sexual assault.

The judge relied on principles governing the assessment of child witnesses and accepted corroborative evidence of prior inappropriate conduct and surrounding circumstances.

The accused was convicted of sexual assault under s. 271 of the Criminal Code and the sexual interference charge was stayed pursuant to the Kienapple principle.

Former spouses brought competing contempt motions concerning alleged breaches of prior access orders and a motion to change an earlier custody and access order.

The court considered whether either party wilfully disobeyed the existing access and non‑harassment provisions and reviewed evidence including a report from the Office of the Children’s Lawyer.

The court found the respondent had unilaterally terminated access contrary to the order but had purged the contempt by later permitting supervised access.

Both contempt motions were dismissed.

The court varied the prior order to implement recommendations from the Office of the Children’s Lawyer, providing for structured supervised access through a supervised access program and allowing the children to terminate access at or after age sixteen.

The accused applied under s. 520 of the Criminal Code for review of a detention order following a bail hearing where detention was ordered primarily on secondary grounds.

The reviewing judge considered whether the justice of the peace committed an error in principle or whether there had been a material change in circumstances since the original bail hearing.

The applicant argued that the justice of the peace failed to respect the presumption of innocence when considering the alleged offence and the accused’s substance abuse issues.

The court held that the reasons, read as a whole, demonstrated that the justice of the peace properly applied the presumption of innocence and reasonably relied on the accused’s prior breaches of recognizance, criminal record, and deficiencies in the proposed surety plan.

Finding no error in principle and no material change in circumstances, the court declined to interfere with the detention order.

Following the dismissal of a motion effectively seeking partial summary judgment, the court determined the appropriate costs award.

The responding party sought costs on a substantial indemnity basis under Rule 20.06 of the Rules of Civil Procedure, alleging unreasonable conduct in bringing the motion.

The court found the motion was not brought in bad faith or for delay, but that costs should follow the event on a partial indemnity scale.

Applying the reasonableness principles from appellate authority on costs, the court reduced the amount claimed due to excessive research time and fixed costs at a reasonable amount.

The accused applied under s. 520 of the Criminal Code for a review of a detention order pending trial on multiple charges including armed robbery with a firearm, breach of recognizance, and sexual assault.

The applicant argued that material changes in circumstances justified release, including the commencement of trials, proposed new sureties, alleged harsh detention conditions, and asserted defences to the charges.

The court held that a bail review is not a de novo hearing and requires either an error in principle in the original decision or a material change in circumstances.

The proposed sureties were found unsuitable and did not constitute a material change, particularly given prior breaches and concerns about supervision and firearms at the proposed residence.

The court concluded that no material change in circumstances had been established and upheld the detention order.

The plaintiffs brought a medical malpractice action alleging that two obstetrician-gynecologists breached the standard of care during a laparoscopic assisted vaginal hysterectomy, resulting in the transection of the plaintiff’s ureter.

The court considered expert medical evidence regarding the standard of care, the surgical technique required to protect the ureter, and whether circumstantial evidence could support an inference of negligence.

The court held that ureteric injury can occur even when surgeons exercise appropriate care and that the evidence did not establish that the surgeons deviated from accepted surgical practice.

The court accepted the defence explanation that the injury resulted from aberrant anatomy and that the procedure was performed with appropriate supervision and technique.

The plaintiffs failed to prove negligence on a balance of probabilities.

The Crown appealed a sentencing judge's decision to suspend the respondent's conditional sentence order and direct her to serve 30 days in custody intermittently on weekends following three admitted breaches.

The Crown argued that the Criminal Code does not permit intermittent sentences for conditional sentence breaches.

Applying the Ontario Court of Appeal's decision in R. v. Ng, the Superior Court agreed that the sentencing judge lacked jurisdiction to impose an intermittent sentence.

The appeal was allowed, but because the respondent had already served the 30 days, the sentence was varied to time served plus probation.

The moving party contractor sought partial summary judgment declaring that funds held by the owner constituted trust monies under the Construction Lien Act and requested immediate payment.

The owner acknowledged the funds were subject to a statutory trust but asserted a right of set-off for alleged delay and deficiency damages under the contract.

The court examined the interaction between the trust provisions and the statutory holdback regime, holding that once lien rights of subcontractors have expired, funds may cease to be characterized as holdback and the owner may assert set-off rights against trust funds.

Because the validity and quantum of the set-off claim and the lien claim remained disputed, these issues constituted triable issues.

Partial summary judgment and immediate payment were therefore inappropriate.