Fowler Byrne

Following a decision on a motion to change terminating the father's child support obligations, both parties sought costs.

The father sought full indemnity costs of $7,006, while the mother sought full indemnity costs of $4,902.72.

The court found the father was the successful party, as he obtained an earlier termination date than the mother had offered.

Considering the offers to settle and the time spent, the court awarded the father partial indemnity costs fixed at $3,000.

The applicants and respondents were the four directors of a non-share corporation operating a religious seminary.

The corporation faced severe financial difficulties, and the applicants sought to sell its main property to pay off debts.

The respondents refused to consent, resulting in a board deadlock.

The applicants applied for a court order compelling the sale under the court's inherent jurisdiction.

The court dismissed the application, applying the Supreme Court's guidance in Highwood that courts should generally avoid interfering in the internal decision-making of religious organizations, especially where no procedural unfairness is shown and alternative remedies exist.

Following conviction for sexual assault under s. 271 of the Criminal Code, the court imposed a penitentiary sentence after weighing denunciation, deterrence, proportionality, and the aggravating and mitigating circumstances under ss. 718, 718.1, and 718.2.

The offence involved sexual penetration of an intoxicated complainant at a family gathering after prior sexualized conduct and statements, with significant ongoing physical, emotional, and economic impact.

The offender's lack of prior criminal record, family support, employment history, and post-conviction acceptance of responsibility were mitigating, but were outweighed by the seriousness of the offence and its consequences.

A sentence of three and a half years' incarceration was imposed together with non-communication, weapons prohibition, DNA, and sex offender registration orders.

The plaintiff brought a motion for summary judgment in a wrongful dismissal action against her employer, Asco Manufacturing.

The plaintiff had worked for the predecessor company since 1981 before it was sold to the defendant in 2017.

The court found that under s. 9(1) of the Employment Standards Act, 2000, the plaintiff's employment was continuous.

The court determined that summary judgment was appropriate and awarded the 64-year-old plaintiff 20 months' notice, amounting to $66,391.40, plus costs.

The plaintiff commenced an action against five lawyers and their law firms for breach of fiduciary duty and negligence arising from the sale of a matrimonial home and payment of debts.

Four of the lawyers and their firms brought a motion for summary judgment to dismiss the action.

The court granted the motion, finding that the plaintiff's claim was statute-barred under the Limitations Act, 2002, as she had discovered the material facts of her claim more than two years before commencing the action.

The court also noted that the action against opposing counsel in the family law proceedings would have been dismissed regardless, as no duty of care is owed to an opposing party.

The parties separated in 2011 after a long-term marriage.

The applicant wife sought retroactive and ongoing child and spousal support, equalization of net family property, and the continuation of a restraining order.

The court awarded retroactive child support for the period before the eldest child ceased being a child of the marriage.

The court also awarded compensatory spousal support, finding the wife was entitled to share in the husband's post-separation income increase due to the long-term nature of the marriage and her role in raising their special needs children.

The court calculated equalization and post-separation adjustments, resulting in a net payment owed by the wife from her share of the matrimonial home proceeds.

The restraining order was vacated as the circumstances no longer justified it.

The respondent father brought a Motion to Change to terminate his child support obligations for the parties' adult daughter, who had completed her undergraduate degree in 2012 but continued to pursue a Master's degree and other studies while dealing with mental health issues.

The court applied the Menegaldo factors and found the daughter remained a child of the marriage until May 1, 2016, when she ceased full-time studies.

Applying the D.B.S. factors, the court granted a retroactive adjustment of child support back to May 1, 2016, with any overpayments to be credited against the father's outstanding debts to the mother.

The moving party father brought a motion seeking summer access to his two children in Egypt, the UAE, or the USA.

The responding party mother opposed the motion, citing a previous incident where the children disappeared for 10 days in Egypt, outstanding criminal charges against the father in Canada for alleged physical abuse, and the fact that Egypt and the UAE are not signatories to the Hague Convention.

The court dismissed the motion, finding that the father had shown disregard for the Canadian court system and the children's welfare, and that the risk of the children not being returned to Canada outweighed the benefits of the proposed international access.

The accused was charged with importing cocaine after returning to Canada from Jamaica with four tins containing the drug.

The accused admitted to importing the tins but claimed she did not know they contained cocaine, believing she was transporting non-drug items for a friend.

The defence sought to introduce expert psychological evidence regarding the accused's intellectual capacity to support her lack of knowledge, which the court ruled inadmissible as unnecessary for assessing credibility.

Applying the W.(D.) framework, the court found the accused's testimony raised a reasonable doubt about her knowledge of the drugs.

The accused was acquitted.

The applicant brought two motions seeking a finding of contempt against the respondents for breaching a prior court order.

The court found the individual respondent, Tejwant Bawa, in contempt for two payroll payments made to a family member without consent, but noted that this contempt had been purged through repayment.

All other allegations of contempt, including failure to provide documents to an auditor and other payments, were dismissed due to lack of sufficient evidence or the exercise of judicial discretion where good faith efforts to comply were apparent.

No additional penalties were levied.

Following a judge-alone trial on a charge of sexual assault, the court found the Crown proved beyond a reasonable doubt that the accused sexually assaulted the complainant in a bedroom after she had been put to bed fully clothed and later woke to vaginal and anal intercourse.

The court accepted the complainant’s fractured but detailed account of the bedroom assault, relied on corroborative surrounding circumstances, and rejected the accused’s lack-of-memory evidence as not credible.

The court held that an unconscious person cannot consent and that the complainant’s express direction to stop established non-consent and the accused’s knowledge of it.

The court was not satisfied beyond a reasonable doubt that the complainant did not consent to earlier sexual activity alleged to have occurred in the living room, given memory gaps, intoxication evidence, and the absence of scientific evidence on incapacity.

The accused was nevertheless found guilty of sexual assault as charged based on the bedroom assault.

The appellant purchased a used vehicle from the respondent's father in a private sale after seeing an advertisement claiming the vehicle had a 'new' engine.

The engine failed shortly after purchase, and the appellant sued for the cost of repairs, alleging fraudulent misrepresentation and breaches of the Consumer Protection Act.

The Small Claims Court dismissed the action.

On appeal, the Divisional Court upheld the decision, finding no palpable and overriding errors of fact and no errors of law.

The court confirmed that the Consumer Protection Act does not apply to private transactions between individuals who are not in the business of selling vehicles, and the facts did not support a finding of fraudulent misrepresentation.

The applicant father applied in Newfoundland and Labrador to reduce his child support obligations and waive arrears due to a significant reduction in income following a workplace injury.

A provisional order was made in Newfoundland and Labrador.

At the confirmation hearing in Ontario, the respondent mother did not dispute the father's reduced income but sought to ensure ongoing support for their two adult children with disabilities.

The court partially confirmed the provisional order, reducing ongoing child support based on the father's actual income and reducing arrears to nil, but limited the retroactive adjustment to 2014 in accordance with the D.B.S. framework.

Sentencing decision involving a repeat child pornography offender who accessed and saved explicit images of prepubescent boys on a public library computer while subject to probation and a prior prohibition order.

The court held that denunciation and deterrence predominated, rejected a conditional sentence, and imposed a 30-month penitentiary term with concurrent time for breach of the prior order, despite significant post-offence treatment and medication evidence.

Applying the two-step framework for mandatory minimum challenges, the court found the six-month minimum under s. 163.1(4.1) was not grossly disproportionate for this offender.

However, relying on a reasonable hypothetical analogous to youthful passive receipt of a single image, the court held the mandatory minimum violated s. 12 of the Charter and could not be saved under s. 1.

The defendants brought a motion to strike the plaintiff's Statement of Claim and Reply to Defence and Counterclaim, alleging they were scandalous, frivolous, vexatious, irrelevant, and/or an abuse of process, and sought removal of the plaintiff's affidavit of documents.

The court granted the motion in part, striking numerous paragraphs and entire claims (e.g., deceit, Family Law Act claims, Charter violations, and parts of nervous shock and libel claims) without leave to amend for lacking legal basis or being scandalous/frivolous.

Other claims (e.g., malicious prosecution, false imprisonment, conspiracy, and parts of negligence/libel/nervous shock) were allowed to stand or were struck with leave to amend.

The plaintiff's affidavit of documents was ordered removed.

The Plaintiffs brought a motion seeking a finding of contempt against the Defendant Fawad Khan for breaching court orders that restricted the Khan Defendants from bringing motions without leave.

They also sought ancillary orders regarding alternative service for future contempt motions, restraining further motions until outstanding costs were paid, and requiring leave applications to be in writing.

The court found Fawad Khan in contempt for one instance of failing to seek leave before bringing a motion to compel undertakings.

Other contempt allegations, particularly those related to appeals, were dismissed as not falling within the scope of the restrictive orders.

The court granted the request for alternative service for future contempt motions and dispensed with the approval of court orders by the Khan Defendants.

However, it dismissed the request to restrain motions until costs were paid, noting that contempt cannot be used to enforce monetary orders, and affirmed that leave applications should proceed in writing as per the Rules of Civil Procedure.

Costs were awarded to the Plaintiffs, but reduced due to their limited success on the multiple contempt allegations.

The applicant sought interim interim retroactive and ongoing spousal support, and an advance on her equalization payment for legal fees.

The respondent sought to sever the divorce from corollary relief.

The court imputed the respondent's income at $250,000 and attributed no income to the applicant, ordering $9,500 per month in spousal support retroactively from January 1, 2018, with credit for amounts already paid.

The request for an advance payment of costs was denied due to insufficient evidence of necessity and the applicant's financial resources.

The court granted the severance of the divorce, finding no legal disadvantage to the applicant.

The TNS Defendants brought two motions seeking leave to add three engineering firms (Chung & Vander Doelen Engineering Ltd., M.A. Bryan Engineering Inc., and Tacoma Engineers Inc.) as defendants to their counterclaim, alleging negligence in the design and coordination of a septic and plumbing system.

The proposed defendants opposed, arguing the claims were statute-barred due to the expiry of the limitation period.

The court granted leave to add Chung & Vander Doelen Engineering Ltd. and M.A. Bryan Engineering Inc., allowing them to plead a limitations defence at trial, as there was a factual dispute regarding discoverability.

However, the motion to add Tacoma Engineers Inc. was dismissed, as the court found the material facts against Tacoma were known or ought to have been known by the TNS Defendants by spring 2015, making the claim against Tacoma statute-barred.

Patrick Walsh was found guilty by a jury of sexual assault involving forced oral sex and forced vaginal intercourse.

The Crown sought a three-year custodial sentence, while the defence sought 12 months.

The court, making its own factual findings under section 724 of the Criminal Code, confirmed both acts of sexual violence and found the defendant's post-offence conduct (FaceTiming friends and laughing about the victim) to be a serious aggravating factor.

Mitigating factors included the defendant's youth (22 years old, 20 at the time of offence) and lack of prior criminal record, along with strong family support.

The court dismissed the argument that media coverage constituted a mitigating factor due to insufficient evidence of exceptional public shaming.

Balancing denunciation, deterrence, and rehabilitation, the court imposed a sentence of two years in a penitentiary, along with several ancillary orders.

The respondent, Fei Hung, brought a motion for partial summary judgment concerning the alleged theft of monies by the applicant, Robert Willis, and the ownership of her home, business, and contents of a safety deposit box.

She also sought to dismiss Willis's entire claim.

The court found the parties' cohabitation agreement to be valid and binding, dismissing Willis's claim to an ownership interest in the property and the Eglinton business.

However, issues regarding the ownership of the Jutland business and the exact amount of money in the jointly owned safety deposit box were deemed to require oral evidence and were reserved for a mini-trial.

Willis's claim for unjust enrichment related to the property was dismissed due to the binding agreement.