François Kabemba

This endorsement addresses the scope of the Office of the Children's Lawyer (OCL) involvement in a family law matter.

The OCL sought to expand its order to include a section 112 clinical assessment for both children, not just the older child, citing identified parenting issues and the high-conflict nature of the case.

The respondent mother opposed the expansion for the younger child, arguing he was not the subject of current litigation and that the court lacked jurisdiction without a formal motion to vary.

The court found that a Motion to Vary involving both children was already pending, initiated by the mother in 2020 with the father's response addressing both children.

Additionally, the court affirmed its authority under section 112(3) of the Courts of Justice Act to request such a report on its own initiative.

The court ordered the OCL's involvement to be expanded to include a section 112 report for both children, deeming it necessary to determine a parenting arrangement in their best interests.

The applicant sought an order for partition and sale of the matrimonial home and for a portion of the proceeds to be held in trust pending resolution of family law issues including child support, spousal support, and equalization of net family property.

The court dismissed the application without costs, finding that relief related to the matrimonial home should be sought within the existing family law litigation (commenced in 2013) to avoid prejudicing parties' rights and to address all related issues holistically.

The court also noted the applicant's delay in pursuing the matter and her own contribution to the urgency claimed, as she was a joint tenant and defaulted in the bank's action.

The defendants moved for summary judgment to dismiss a professional negligence action arising from a gas station purchase.

The plaintiffs, former shareholders of a bankrupt corporation, alleged their lawyer failed to update a TSSA certificate, leading to deficiencies.

The court found the plaintiffs' claims were personal, not corporate, and were barred by the Limitations Act, 2002, as they were discovered in May 2008, but the action was commenced in December 2010.

The court also ruled that a nunc pro tunc order under s. 38 of the Bankruptcy and Insolvency Act was invalid as it was sought after the limitation period expired, and that the rule in Foss v. Harbottle barred the plaintiffs' claims for loss of investments and income.

The defendants' motion for summary judgment was granted, and the plaintiffs' cross-motion was dismissed.

The applicant father brought a motion for a final order for joint custody, arguing the parties had reached an oral agreement in the courthouse hallway.

The respondent mother opposed the motion and brought a cross-motion to modify the father's access rights, arguing he failed to pay child support arrears as agreed.

The court found that no final agreement on joint custody had been reached, as essential terms including child support and decision-making were not resolved.

The court also declined to modify the existing interim custody order, finding no material change in circumstances.

Both motions were dismissed without costs.

Le requérant et l'intimée ont présenté une motion pour fixer la pension alimentaire pour enfants payable rétroactivement.

La question principale était de savoir si l'intimée avait tenu lieu de mère (in loco parentis) envers l'enfant biologique du requérant issu d'une union précédente.

La Cour a conclu que l'intimée n'avait pas tenu lieu de mère, notant l'absence d'implication dans la vie scolaire et médicale de l'enfant, la relation difficile entre eux, et le rôle actif de la mère biologique.

Par conséquent, aucune pension alimentaire n'est payable par l'intimée pour cet enfant.

La Cour a également fixé les montants de pension alimentaire et de dépenses spéciales payables par le requérant pour les enfants du mariage.

Following the dismissal of the applicant's property claim, the respondent parties sought costs on a substantial indemnity basis.

The court reviewed the factors under Rule 57.01, noting the applicant's conduct unnecessarily prolonged the proceedings and complicated a simple contractual dispute.

However, the court declined to award substantial indemnity costs, finding the settlement offers did not trigger Rule 49.10 consequences.

The court reduced the requested amounts due to duplication of effort, excessive use of senior counsel, and unreasonable refusal of a settlement offer by one respondent, awarding total costs of $47,500 across the three respondents.

The applicant sought a declaration of ownership over a 13-acre parcel of land, relying on concepts of constructive/resulting trust, unjust enrichment, proprietary estoppel, and adverse possession.

The court dismissed the application, finding that the applicant failed to establish the legal requirements for these remedies and was barred by the doctrine of laches due to significant delay in asserting his claim after multiple property transfers.

Les requérants demandaient le recouvrement de dépens à la suite d’un litige relatif à la vente d’un bien‑fonds appartenant à une fondation.

Dans une requête antérieure, ils s’étaient opposés à la vente du bien-fonds et avaient été déboutés, la cour concluant qu’ils n’avaient pas respecté les obligations du vendeur prévues à la convention d’achat‑vente.

La cour a conclu que leur opposition infructueuse à la conclusion de la vente avait provoqué le litige et que leur conduite ne justifiait pas l’octroi de dépens en leur faveur.

Le recouvrement des dépens demandé par les requérants a donc été rejeté.

La motion incidente et toute compensation des dépens ont également été rejetées, sans ordonnance de dépens en faveur des intimés.

The court was asked to determine the amount of debts owed by a religious foundation to various individuals who allegedly advanced funds used to purchase a church property and whether those debts should be paid from the proceeds of the property’s sale held in trust.

The moving parties asserted numerous loans, while the opposing faction disputed several claims and challenged the sufficiency of the evidence.

Applying principles relating to burden of proof, credibility in undocumented loan transactions, and adverse inferences for missing evidence, the court reviewed each claimed advance individually.

The court accepted certain claims supported by documentary evidence, including mortgage-related advances and payments made to satisfy obligations to a vendor mortgagee.

Other claims were rejected where evidence was inconsistent, unsupported, or contradicted by banking records.

The court ordered payment of specific sums from the sale proceeds to certain creditors, including the Kabelu parties and two additional lenders.

The court was asked to determine the amount of debts owed by a religious foundation to various individuals who allegedly advanced funds used to purchase a church property and whether those debts should be paid from the proceeds of the property’s sale held in trust.

The moving parties asserted numerous loans, while the opposing faction disputed several claims and challenged the sufficiency of the evidence.

Applying principles relating to burden of proof, credibility in undocumented loan transactions, and adverse inferences for missing evidence, the court reviewed each claimed advance individually.

The court accepted certain claims supported by documentary evidence, including mortgage-related advances and payments made to satisfy obligations to a vendor mortgagee.

Other claims were rejected where evidence was inconsistent, unsupported, or contradicted by banking records.

The court ordered payment of specific sums from the sale proceeds to certain creditors, including the Kabelu parties and two additional lenders.

The respondents in the underlying proceeding brought a motion seeking recovery of $15,159.17 in costs allegedly incurred in a prior vendor–purchaser motion.

The court held that the relief sought fell outside the scope and jurisdiction of the files in which the motion was brought.

The evidence showed that the moving parties had resigned as directors of the foundation and therefore lacked authority to retain counsel or act on behalf of the foundation in the earlier proceeding.

Applying rule 57.01(2) of the Rules of Civil Procedure, the court declined to award costs to the moving parties and rejected their claim for recovery of those costs.

The motion was dismissed without costs.

Parties disputed the debts owed by a foundation in connection with funds held from the sale of a building.

The court determined the specific creditors and amounts owing, including debts related to a second mortgage, institutional loans, and private advances.

The court directed that the purchaser of the property could appear within seven days to show cause why the identified debts should not be paid immediately from trust funds held by a law firm or the court registrar.

Absent such notice, the trustee or registrar was ordered to distribute the specified amounts to the named creditors, with any remaining balance payable to the foundation.

Following a successful application determining that the respondents could not unilaterally revoke their resignations as directors of a charitable foundation, the applicants sought costs.

The court found the respondents' conduct in attempting to retake control of the foundation and removing its property to be unreasonable.

The court awarded costs to the applicants on a partial indemnity scale, fixed at $65,000 plus HST and $7,000 in disbursements.

The applicants sought declarations regarding the corporate governance of a non-share capital charitable corporation after two directors, who were also pastors, resigned and later attempted to revoke their resignations.

The court held that under the Canada Corporations Act and the corporation's by-laws, a director's resignation becomes effective when irrevocably sent to the corporation.

The court further held that a director cannot unilaterally revoke a resignation once it has been received and accepted by the board.

Consequently, the respondents were no longer directors and had no authority to act on behalf of the corporation.