Fowler Byrne

The applicant mother and respondent father separated after a five-year relationship.

The mother sought final decision-making responsibility and primary residence of their three children, while the father sought equal parenting time and joint decision-making.

The court found a history of physical and psychological family violence perpetrated by the father against the mother, as well as emotional harm to the children.

The court concluded that cooperative parenting was not possible and granted the mother final decision-making authority and primary residence, with the father having parenting time on alternate weekends and one weeknight.

The father was also ordered to pay child support and his proportionate share of section 7 expenses.

The accused brought a pre-trial motion to exclude evidence, including an imitation firearm and a construction vest, arguing his rights under ss. 8, 9, and 10(b) of the Charter were violated during his arrest for a home invasion.

The court found the detention and searches were lawful, but the police breached the implementational component of the accused's s. 10(b) right to counsel by unreasonably delaying his access to a lawyer due to an internal policy.

Applying the Grant framework under s. 24(2), the court concluded that despite the serious s. 10(b) breach, the evidence should not be excluded because the impact on the accused's protected interests was minimal and society's interest in adjudicating the case on its merits favoured admission.

The parties brought cross-motions regarding interim parenting issues for their 6-year-old child, including school enrollment, afterschool care, summer camps, and health decision-making.

The father sought to change the child's school to Mineola Public School, while the mother sought to keep the child at Owenwood Public School.

The court found no material change in circumstances to justify varying the previous interim order regarding schooling.

The court also ordered the father to un-enroll the child from afterschool care at Mineola, as the mother had final decision-making authority for daycare.

The court split the summer camp schedule between the parents' choices and set exchange times for non-school days.

The matter was directed to a trial management conference.

The applicant father brought a motion to vary an interim parenting order to increase his parenting time to a 2/2/3 schedule, along with requests for summer access, possession of the child's documents, and the use of OurFamilyWizard.

The court found no material change in circumstances to justify varying the regular interim parenting schedule, noting the child's upcoming transition to kindergarten and slight aging were insufficient.

The court granted a gradual increase in summer parenting time, ordered the mother to hold the child's official documents while providing notarized copies to the father, and declined to order the use of OurFamilyWizard due to cost concerns.

The applicant mother brought a motion under the Hague Convention seeking the return of her 12-month-old child from Mexico to Ontario.

The parties had travelled to Mexico temporarily, but the respondent father subsequently refused to return the child to the mother.

The court applied the hybrid approach to determine habitual residence and found that the child was habitually resident in Ontario.

The court concluded that the father wrongfully retained the child and ordered the child's immediate return to Ontario.

The Crown sought a ruling on the admissibility of statements made by the accused, Viraphone Savina Ackharath and Alea Sabira Baksh, who are charged with importing and conspiracy to import a controlled substance.

Ackharath challenged the admissibility of her statements, arguing a violation of her s. 9 Charter rights due to an arbitrary arrest without reasonable and probable grounds.

The court found that the Border Services Officer had objective reasonable and probable grounds for the arrest, considering factors such as the accused being a travelling companion of someone arrested for smuggling, their origin from a known source country for controlled substances, and being flagged for secondary inspection.

Consequently, no s. 9 Charter breach was found.

Furthermore, the court determined that even if a breach had occurred, the admission of the statements would not bring the administration of justice into disrepute under s. 24(2) of the Charter, given the non-serious nature of any potential breach and the minimal impact on the accused's rights, particularly as she was immediately advised of and given access to counsel.

The Crown's application for the admissibility of all statements was granted.

The Appellant Mother appealed a child protection order that placed her child in the Father's custody with supervised access for the Mother.

The Mother alleged denial of procedural fairness, errors in admitting child's hearsay statements, allowing an expert to testify beyond his expertise, and an erroneous discretionary access order.

The court dismissed the appeal, finding no denial of procedural fairness, proper handling of child's statements, appropriate expert testimony, and valid discretionary access order under the Child, Youth and Family Services Act.

The applicants sought a declaration that their property's current use (outside storage of vehicles, machinery, equipment, commercial/business operation, storage of trucks/trailers, shipping containers) constituted a legal non-conforming use under s. 34(9) of the Planning Act, which would set aside municipal Orders to Comply.

The respondent sought dismissal, or a declaration limiting the non-conforming use to 4 trucks and 7 trailers.

The court found that while the property had a prior legal non-conforming use as a trucking business with ancillary parking and storage, the applicants' current use had significantly changed in nature and intensity, including storage of derelict vehicles, a fuelling station, and a junk yard, which were too remote from the original use and caused undue neighbourhood impact.

Consequently, the applicants lost the protection of s. 34(9) of the Planning Act, and their application was dismissed, making the Orders to Comply enforceable.

The plaintiff tenant sought immediate relief from forfeiture and a mandatory injunction to restore its commercial tenancy after the defendant landlord terminated the lease due to the tenant's use of the premises, which rendered the property uninsurable without a sprinkler system upgrade.

The court found the tenant was in breach of the lease for failing to upgrade the sprinkler system, as this cost was attributable to their specific hazardous use under the "net lease" terms.

The court dismissed the tenant's request for a mandatory injunction but granted temporary relief from forfeiture for 30 days, allowing the tenant to remedy the breach by installing an upgraded sprinkler system at its own cost or through an agreed arrangement with the landlord.

Operations were prohibited until the system was installed and approved by an insurer.

The Applicant Mother sought interim child and spousal support from the Respondent Father.

The Father consented to child support but disputed spousal support, arguing for no payment and the imputation of income to the Mother due to alleged underemployment and underutilization of capital assets (equalization payment and family farm).

The court found that entitlement to spousal support had already been established by a previous order.

The court declined to impute employment income to the Mother, considering her long absence from the workforce, her role in caring for a special needs child, and her partial blindness.

It also declined to impute income from capital assets, citing unsettled valuations and unclear income-earning potential.

The Father's motion for a variation to pay no interim spousal support was dismissed.

The court awarded the Mother interim spousal support of $2,900 per month from September 1, 2019, and set specific interim child support amounts.

The Plaintiff, A.J. Lanzarotta Wholesale Fruits & Vegetables Ltd., brought an urgent motion for a Mareva injunction and a Norwich Order against the Defendants, United Farmers, 2773125 Ontario Inc., Janet Michelle Brunton, and Wayne D. King.

The Plaintiff alleged fraudulent misrepresentation by the Defendants regarding government contracts and ownership of a plane, leading to a $1.7 million debt for produce.

The court found that the Plaintiff made proper disclosure and established a strong prima facie case of fraudulent misrepresentation, as well as a real risk of asset dissipation by the Defendants.

The court also determined that the injunction should cover all property, whether solely or jointly held by Brunton, as beneficial ownership was a triable issue.

The Mareva injunction was continued.

The applicant landlord brought an application for a declaration that a commercial tenancy was terminated and sought vacant possession.

The respondent tenant argued that the lease had been extended to August 2023 through either a written agreement or an oral agreement based on part performance.

The court found that the landlord had waived strict compliance with the written notice requirement for the option to renew, resulting in an automatic one-year extension.

However, the court rejected the tenant's argument for a longer extension, finding no written agreement and that the doctrine of part performance did not apply.

The court ordered the tenant to deliver vacant possession at the end of the one-year extension period.

The respondent husband brought a motion seeking the production of the applicant wife's former counsel's file.

The wife opposed, claiming solicitor-client privilege.

The court found that the wife had implicitly waived privilege by relying on her state of mind and legal advice to seek to set aside the separation agreement, and by disclosing details of her discussions with her lawyer during cross-examination.

The court ordered the wife to authorize the release of the file.

The appellants appealed a Small Claims Court decision dismissing their claim for breach of an oral agreement and unjust enrichment regarding a condominium assignment.

The trial judge had dismissed the claim on a motion for non-suit after the appellants closed their case.

The Divisional Court found that while the Small Claims Court has jurisdiction to hear non-suit motions, the trial judge erred in law by applying a balance of probabilities test instead of assessing whether a prima facie case was made.

However, the court declined to order a new trial, instead exercising its power under the Courts of Justice Act to substitute its own decision.

The court agreed with the trial judge's factual findings that the oral contract lacked certainty and the written assignment agreement provided a juristic reason for any enrichment, ultimately dismissing the appellants' claim.

This is a costs endorsement following the court's approval of a settlement in an estate matter.

The Applicant (David Grier) and Respondent (Janet Grier, represented by the Public Guardian and Trustee) sought court approval for a settlement, which was opposed by a non-party, Sandra Grier.

Due to Sandra Grier's unreasonable, deliberate, improper, and vexatious conduct, including failure to follow court orders and making unsubstantiated fraud allegations, the court awarded substantial indemnity costs against her, to be paid from her share of the estate.

The court also approved the legal fees for the Applicant and Respondent, with portions paid by the estate and their respective shares, finding them reasonable given the complexity and duration of the litigation.

The respondent father brought a motion to stay a 2011 interim child and spousal support order and its enforcement, after unilaterally ceasing payments for several years.

The applicant mother brought a cross-motion for financial disclosure, retroactive child support, and a preservation order.

The court dismissed the father's motion, finding he failed to meet the heavy onus to vary an interim order, as he did not demonstrate a strong prima facie case, hardship, urgency, or clean hands.

The court granted the mother's requests, ordering retroactive child support from 2017 based on the father's increased income, and continued a preservation order against the father's RRSP.

The Crown brought an application under s. 714.1 of the Criminal Code to allow the complainant to testify remotely by videoconference from British Columbia.

The defence opposed the application and objected to its late service.

The court granted the Crown leave to proceed despite the late service but dismissed the application on its merits.

The court found that the Crown's supporting affidavit, sworn by a police officer, relied on inadmissible hearsay regarding the complainant's employment and financial hardship, leaving an insufficient evidentiary basis to grant the order.

The plaintiff sought damages for injuries sustained in a rear-end motor vehicle accident.

The court found the defendant entirely at fault.

The court concluded the plaintiff's injuries, which included chronic pain and post-concussion syndrome, met the statutory threshold as a permanent serious impairment of an important physical function.

The plaintiff was awarded $100,000 in general damages, $1,993.10 in special damages, and $143,560.78 for future care costs.

Claims for past and future income loss were dismissed as the plaintiff failed to establish she would have worked as a dental assistant but for the accident.

On competing motions in an estate-related application, the court considered whether a late response to a Request to Admit should be accepted and whether email negotiations created an enforceable settlement.

Applying the test for withdrawal of deemed admissions, the court held there were triable issues, a reasonable explanation for the delay, and no non-compensable prejudice.

Applying the summary judgment and settlement formation frameworks, the court found that although the parties had agreement on repayment amounts and timing, they had not agreed on the essential term of security for performance.

The alleged settlement was therefore not binding, and enforcement was moot.

The parties brought cross-motions regarding the parenting schedule, child support, and section 7 expenses for their two children.

The respondent father sought a week-about shared parenting schedule, while the applicant mother sought to maintain the status quo.

The court found that a week-about schedule was not in the children's best interests pending trial, but granted the father one additional overnight visit.

Child support was ordered on a set-off basis in accordance with the Guidelines.

The court also resolved minor disputes regarding extracurricular activities and sports equipment.