Frances P. Kiteley

The respondent father brought a motion to set aside an ex parte order that struck his pleadings for failing to provide financial disclosure and pay child support.

The court found that the previous judge only intended to strike pleadings related to financial issues, not parenting issues, making the broad order an error.

Applying the test for setting aside a default judgment, the court found the father had a plausible explanation for his default and an arguable case.

The court set aside the order in its entirety, granted brief periods of unsupervised access, and temporarily suspended child support enforcement to allow the father to stabilize his finances and pay for supervised access.

Following a family law trial, the court determined custody, access, and support issues concerning the parties’ child.

The applicant was granted final custody, while the respondent father received structured unsupervised access including alternate weekends, religious holidays, and progressively increasing summer access.

The court continued an existing restraining order with exceptions to facilitate parenting exchanges and limited communication concerning the child.

The court found that the applicant was no longer entitled to spousal support after January 1, 2012 and dismissed the respondent’s claim for spousal support.

Given the respondent’s disability and subsistence income from ODSP and CPP, the court ordered reduced child support of $50 per month and rescinded accumulated support arrears.

Summitt Energy Management Inc. appealed an Ontario Energy Board order imposing a $234,000 administrative penalty, a compliance order, and restitution to consumers for unfair door-to-door sales practices.

Summitt argued reasonable apprehension of bias, incorrect standard of proof, lack of jurisdiction for restitution, and procedural unfairness.

The Divisional Court dismissed the appeal, finding that the Board's independent legal counsel did not create bias, the proceedings were regulatory (requiring a civil standard of proof), and the Board had broad statutory authority to order restitution.

Following trial reasons granting judgment to the plaintiffs and dismissing a motion brought by a defendant, the court addressed entitlement and quantum of costs.

Applying rule 24 of the Family Law Rules and s. 131 of the Courts of Justice Act, the court found the successful parties presumptively entitled to costs.

The court concluded that the primary defendant had acted in bad faith through conduct including unfounded allegations of fraud and conspiracy, misleading the court in a Mareva injunction motion, and refusing to comply with a memorandum of understanding.

Substantial indemnity costs were therefore warranted.

The defendants were ordered jointly and severally to pay the plaintiffs and intervenors full recovery amounts for fees and disbursements.

The respondent father brought an application under the Hague Convention seeking the return of the parties’ children to Scotland, alleging the mother wrongfully removed them from that jurisdiction.

The court considered whether the children’s habitual residence had reverted to Scotland after the mother and children travelled there for a Christmas visit.

Applying established principles regarding habitual residence and shared parental intention, the court found no evidence of a settled intention to relocate permanently to Scotland.

The evidence demonstrated that the mother and children intended to return to Ontario following a temporary holiday.

The court held that the children’s habitual residence remained Ontario and dismissed the Hague Convention application.

The appellant appealed a Financial Services Tribunal decision that allowed transferred employees to receive immediate unreduced pensions under the Public Service Pension Plan while continuing to work for the successor employer.

The Tribunal had interpreted section 80(3) of the Pension Benefits Act as deeming employment to continue only for the purposes of the Act, but not for the purposes of the pension plan.

The Divisional Court allowed the appeal, holding that the Tribunal's interpretation was incorrect.

The Court found that section 80(3) clearly means that transferred employees' rights and benefits under a predecessor pension plan are to be determined as if their employment and pension plan membership are not interrupted.

The applicant brought a motion to compel compliance with outstanding orders, for contempt, and to strike the respondent's Answer and Claim following chronic non-compliance with financial disclosure obligations.

The court found that the respondent had failed to purge his previous contempt and imposed a $300,000 penalty.

Due to the respondent's ongoing failure to comply with court orders and the Family Law Rules, the court struck his Answer and Claim, limiting his future participation in the proceedings, and awarded full indemnity costs to the applicant.

The appellant builder appealed a trial judgment ordering the return of the respondents' deposit and upgrade payments for a new home.

The trial judge found that the appellant's letter extending the closing date amounted to an anticipatory breach of the agreement of purchase and sale, which the respondents accepted, terminating the agreement.

On appeal, the appellant argued the trial judge erred by deciding the case on the unpleaded issue of anticipatory breach.

The Divisional Court dismissed the appeal, holding that the finding of repudiation was a natural consequence of interpreting the documentary evidence and the appellant suffered no unfairness.

The court also upheld the trial judge's costs award to the third-party lawyer.

The applicant brought a motion to change a consent order requiring payment of spousal support and arrears following a lengthy marriage.

He sought termination of ongoing support and elimination of arrears based on reduced income after retirement, alleged medical limitations affecting his ability to work overtime, financial hardship due to a new family, and alleged rental income earned by the respondent.

The court held that under s. 17 of the Divorce Act a material change in circumstances must be proven that was not contemplated at the time of the original order.

The alleged medical conditions, family circumstances, and retirement were either known or contemplated when the consent order was made, and the evidence of change was weak and largely unsupported.

The court also found the respondent’s alleged rental income did not constitute a material change.

The motion to terminate arrears and ongoing spousal support was dismissed.

The mother brought a motion seeking a custody and access assessment pursuant to s. 30 of the Children’s Law Reform Act in a high‑conflict parenting dispute involving a young child.

The father opposed the motion, arguing that an assessment should only be ordered where “clinical issues” or pathology are present and that the mother’s professional background as a child psychiatrist would create an uneven playing field.

The court reviewed the divergent jurisprudence regarding whether clinical issues are a prerequisite to a s. 30 assessment and concluded that no such requirement exists in the statute.

After considering factors including ongoing parental conflict, unsuccessful mediation attempts, and the child’s age and inability to express views, the court held that an assessment would assist both the parties and the trial judge.

The court ordered a parenting assessment and directed that the parties share the costs equally.

The appellant appealed an Ontario Municipal Board decision awarding the respondents compensation under the Expropriations Act.

The appellant challenged the award of disturbance damages for pre-expropriation business losses and the Board's refusal to reduce the property's market value due to environmental contaminants.

The respondents cross-appealed the Board's refusal to award interest on the disturbance damages.

The Divisional Court dismissed both the appeal and cross-appeal, finding that the Board correctly applied the law regarding disturbance damages and reasonably concluded that the environmental contaminants did not reduce the property's market value.

The Court also upheld the refusal to award interest on disturbance damages, as it is not provided for in the Act.

The appeal was allowed only to correct an arithmetical error in the business loss calculation.

The appellants appealed an order dismissing their motion to discharge a certificate of pending litigation registered against their residential property.

The respondents had obtained the certificate in the context of an oppression remedy claim involving a corporate dispute.

The Divisional Court allowed the appeal and discharged the certificate, finding that the motions judge erred in law by applying a broad equitable discretion instead of determining whether there was a reasonable claim to an interest in land.

The court concluded that the pleadings did not demonstrate a reasonable claim to an interest in the land, as the claims were for damages and corporate remedies, not for an interest in the property itself.

The appellant condominium corporation appealed a Landlord and Tenant Board decision dismissing its application to terminate a tenancy for its own use under s. 48(1) of the Residential Tenancies Act.

The Board had ruled that a large corporation could not claim 'own use' of a rental unit.

The Divisional Court allowed the appeal, holding that a corporation can occupy a rental unit through its employees or agents, such as a live-in superintendent, to fulfill its statutory duties.

The Court set aside the Board's orders and granted vacant possession to the appellant.

The Independent Police Review Director brought a motion to quash a summons to witness issued to an investigator and for a declaration that counsel to the OIPRD was not required to bring the investigative file to her cross-examination.

The underlying application for judicial review sought to defer interviews of two police officers facing criminal charges until after their criminal trial.

The court granted the motion, finding that the evidence sought from the investigator and the investigative file was not relevant or necessary for the judicial review application, as it exceeded the narrow focus of the proceeding.

The appellant appealed a Licence Appeal Tribunal decision that directed the appellant not to carry out a proposal to suspend the registrations of a motor vehicle dealership and its salespersons.

The appellant argued the Tribunal's decision was unreasonable given the dealership's failure to provide adequate financial records and a salesperson's breach of registration conditions.

The Divisional Court dismissed the appeal, finding the Tribunal applied the correct legal principles and reached a reasonable conclusion based on the evidence, including expert accounting testimony that the dealership could reasonably be expected to carry on business in a financially responsible manner.

The applicant brought a motion to strike the respondent's Answer and Claim and to find him in contempt for his ongoing failure to comply with multiple court orders regarding financial disclosure and costs.

The respondent argued he had purged his contempt to the extent possible, citing health issues, lack of funds, and reliance on third parties.

The court found the respondent had not met his obligations and had provided inadequate excuses.

However, noting some recent progress and the respondent's claim that his health issues had resolved, the court adjourned the motion to strike and the contempt motion, giving the respondent one final opportunity to comply with a strict timetable for disclosure and payment of costs.

Two hospitals sought judicial review of arbitration awards that found they violated their collective agreements by contracting out the work of Sterile Processing Technicians without issuing layoff notices.

The arbitrators held that the contracting out resulted in a layoff, entitling affected employees to notice and bumping rights.

The Divisional Court applied the reasonableness standard of review and dismissed the applications, finding that the arbitrators' interpretation of the collective agreements was justified, transparent, intelligible, and within the range of acceptable outcomes.

The appellants/applicants sought to appeal and judicially review an interlocutory decision of the Ontario Securities Commission regarding the composition of a panel for a sanctions hearing.

The Divisional Court dismissed the appeal for lack of jurisdiction under s. 9(1) of the Securities Act, which only permits appeals from final decisions.

The application for judicial review was quashed as premature, as the procedural fairness and jurisdictional issues could be raised after the final decision.

The applicant union sought judicial review of an arbitration award that held the union was estopped from proceeding with a grievance regarding the contracting out of a position.

The arbitrator had found that the union's conduct led the company to rely on a settlement to its detriment.

The Divisional Court found the arbitrator's findings on estoppel were inconsistent with his earlier factual findings that the company's representative had merely made an assumption about the union's intentions.

The court concluded the arbitrator's decision was unreasonable, quashed the award, and remitted the grievance to a different arbitrator.

The appellant grandmother appealed a summary judgment order finding her grandson to be a child in need of protection and making him a Crown ward with no access.

The grandmother argued the motions judge erred in applying the summary judgment test and assessing credibility.

The Divisional Court dismissed the appeal, finding the motions judge correctly applied the test and did not improperly weigh evidence or assess credibility, as the material issue was the undisputed lack of a relationship between the grandmother and the child.