Heather J. Williams

Lily Klassen brought a motion in her family law application seeking occupation rent, consolidation of her family law proceeding with a civil action brought by Kyle's parents (Henry and Beverley Klassen) for loan repayment, striking the jury notice in the civil action, and applying the Family Law Rules to the combined case.

The court dismissed the request for occupation rent without prejudice, finding the issue better suited for trial.

However, the court granted the consolidation of the two proceedings to be tried together in Family Court, struck the jury notice in the civil action, and ordered that the Family Law Rules apply to the trial, citing the risk of inconsistent findings and the efficient use of judicial resources, especially in light of the COVID-19 pandemic's impact on court operations.

This trial addressed parenting arrangements, child support, and loan repayment between separated parents.

The court ordered a parallel parenting regime, granting the mother decision-making for education and the father for health, with extracurricular decisions alternating.

The children's time with the father was gradually increased to an equal "2-2-5-5" schedule during the school year and "week about" during the summer, and a parenting coordinator was appointed.

The father was ordered to pay accumulated special and extraordinary expenses and to repay loans from the mother's parents, with ongoing child support based on an income offset.

The court found the mother's animosity towards the father negatively impacted the children and her decision-making.

The landlord brought an urgent motion to enforce a Landlord and Tenant Board eviction order despite the province-wide COVID-19 eviction moratorium.

The LTB had previously terminated the tenancy due to willful damage to the unit and threats to safety, including suspected drug-related activity and a high volume of visitors.

The court found that the tenant's conduct, which included breaking windows and ignoring pandemic-related physical distancing, constituted urgent and compelling circumstances justifying an exception to the moratorium.

The motion was granted and the Sheriff was directed to expedite the eviction.

The applicant sought an order compelling the respondent, the deceased's common-law spouse, to formally consent to or object to his appointment as trustee of the intestate estate.

The respondent had not returned a renunciation document but clearly opposed the applicant's appointment.

The court granted the application, ordering the respondent to file a notice of objection within 10 days, failing which she would be deemed to have consented.

The court also flagged potential issues regarding the applicant's Quebec residency and the respondent's potential dependants' relief claim under the Succession Law Reform Act.

Following the dismissal of the applicant's application, the successful respondent sought costs.

The respondent requested costs of $13,612.53, which was approximately twice the amount it had set out in its Form 57B costs outline delivered prior to the decision.

The court held that a party cannot seek costs exceeding the amount in its costs outline, as doing so would undermine the purpose of the rule requiring parties to commit to their costs positions.

The respondent's costs were limited to the amount requested in its costs outline.

John Przybytek, having successfully obtained an order to discharge an invalid and unconscionable mortgage, sought substantial indemnity costs against 3002071 Canada Inc., 1457563 Ontario Inc., and lawyer Claude-Alain Burdet personally.

The court awarded costs against 3002071 Canada Inc. only, on a substantial indemnity basis, for fees and disbursements incurred up to March 11, 2019, totaling $16,570.00.

The request for costs against Mr. Burdet personally was denied, as the court found that the applicant's own counsel's firm had engaged in similar problematic conduct regarding a second mortgage, creating an ironic basis for the argument.

The father brought a motion to change a final order, seeking sole decision-making authority over the education plan of the couple's 14-year-old daughter, Gracie, and to enroll her in Napanee District Secondary School (NDSS).

The mother opposed, preferring Gracie remain at Frontenac Secondary School (FSS) in Kingston, citing Gracie's academic success there, transportation issues, and concerns about the father's home environment.

The court found a material change in circumstances due to the parents' severe inability to cooperate on educational decisions.

Considering Gracie's expressed preference for NDSS, supported by a Voice of the Child report, and finding the mother's objections insufficient, the court granted the father's motion.

The order was varied to give the father final decision-making authority for education, permit Gracie's enrollment in NDSS, and assign the mother responsibility for transportation on her weeks.

The child's residency schedule was also clarified.

Paolo Messina sought summary judgment to dismiss the claim against him, arguing the plaintiffs lacked evidence of his involvement in an alleged assault at Calypso Theme Waterpark.

The court found Messina could not rely on his own discovery transcript without the plaintiffs' consent, as it would prevent comprehensive cross-examination.

Despite this, the court granted summary judgment, concluding the plaintiffs failed to provide sufficient evidence identifying Messina as an assailant and could not rely on the prospect of future evidence.

The decision emphasized the "put your best foot forward" principle for responding parties on summary judgment motions.

Messina's crossclaim and counterclaim were to be discontinued.

The applicant, Kossay El-Khodr, sought the court's interpretation of minutes of settlement signed with Northbridge Commercial Insurance Company and Royal & Sun Alliance Insurance Company of Canada.

The dispute centered on the distribution of $385,000 in settlement funds, contingent on the outcome of a Court of Appeal decision regarding the assignment of statutory accident benefits.

El-Khodr argued that the Court of Appeal's decision, which granted Northbridge an assignment of specific future medical and rehabilitation benefits but not all, did not fully trigger the conditions for payment to Northbridge as per the minutes of settlement, or that the contract was frustrated.

The court applied principles of contractual interpretation, finding that Northbridge was wholly successful on the appeal as it obtained the specific assignments it had sought.

The court dismissed El-Khodr's arguments, concluding that the conditions in the minutes of settlement were met, and ordered the release of the $385,000 to Northbridge.

This costs endorsement followed a successful motion by the plaintiffs in a landlord-tenant dispute.

The plaintiffs sought approximately $8,200.00 in costs on a partial indemnity basis.

The defendants argued for a reduction based on the plaintiffs' pre-motion conduct and their request for post-decision costs.

Applying Rule 57.01 of the Rules of Civil Procedure and the principles from *Boucher*, the court found the plaintiffs' requested costs reasonable, noting comparable billing rates and hours between the parties' counsel.

The court dismissed the defendants' arguments for reduction and ordered the defendants to pay the plaintiffs $8,200.00 in all-inclusive costs.

The court also confirmed that costs were payable by both corporate and individual defendants.

The plaintiffs, Louis and Sandra Aileen Balogh, were successful in their action against R.C. Yantha Electric Ltd. and Rodney Yantha, establishing that their property was not subject to a prescriptive easement or right of way.

In this costs endorsement, the plaintiffs sought substantial indemnity costs due to the defendants' conduct, including trespassing and altering their land, and their failure to accept an earlier offer.

The court found the defendants' conduct to be "reprehensible, scandalous or outrageous" and awarded substantial indemnity costs.

While the plaintiffs' offer did not trigger Rule 49, the court considered the defendants' conduct and the principles of indemnity and reasonable expectation of costs.

The court adjusted the total fees and disbursements claimed by the plaintiffs, awarding $70,000 in fees plus HST, and $3,800.60 in disbursements plus HST, against both defendants.

The father moved for a temporary order to increase his parenting time, reduce child support, and address section 7 expenses.

The mother opposed and sought orders for decision-making authority, retroactive and ongoing child support, and other child-related issues.

The court addressed the admissibility of hearsay evidence (letters) under the principled exception, finding them reliable and necessary.

The father's request for equal parenting time was granted, applying the "maximum contact" principle.

The mother's request for sole decision-making authority was denied as premature.

Child support was adjusted based on a set-off calculation using the father's 2018 income and the mother's current income.

Summer parenting was set at two five-day periods per parent.

The mother was permitted to renew children's passports without the father's signature due to the father's surreptitious conduct, but international travel without the other parent's consent was denied due to COVID-19 restrictions.

Following the dismissal of the applicant unit owner's application regarding a noise complaint, the respondent condominium corporation sought full indemnity costs of $89,580.36.

The court rejected the respondent's argument that it was entitled to full indemnity costs under s. 134(5) of the Condominium Act, as the respondent was not an applicant.

However, because the applicant failed to accept a generous without-costs dismissal offer made by the respondent, the court awarded the respondent partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter, fixing the total costs award at $70,000.

The individual defendants brought a motion to strike claims against them, arguing that the plaintiff's amendment to its statement of claim improperly withdrew an admission regarding the timing of alleged conduct, and that the claim failed to plead the required particulars for negligent misrepresentation.

The court held that the dates provided in the plaintiff's response to a demand for particulars were factual pleadings, not deliberate admissions, and could be amended without leave.

However, the court found that the plaintiff failed to plead the essential elements of negligent misrepresentation against the individual defendants.

The negligent misrepresentation claim was struck.

The plaintiff commercial tenant brought an urgent motion after being locked out of its business premises by the defendant landlord.

The lease required the landlord to provide 30 days' notice before terminating the lease and re-entering the premises.

The court found that a spreadsheet allegedly provided to the tenant did not constitute proper notice under the lease.

The court held that the landlord unlawfully terminated the lease and granted the tenant's motion, ordering the return of items taken from the premises.

The successful defendants in a motor vehicle accident action sought an order for priority of payment of their costs before the plaintiffs paid their own lawyers' fees and disbursements, and that these costs be paid from the damages awarded to the adult plaintiffs and costs recovered from the unsuccessful defendant.

The court denied the request, finding no legal basis for such an order where there was no mutuality of debts between the parties for set-off, distinguishing it from solicitor's lien cases where set-off applies between parties to a judgment.

Following a successful application to discharge a mortgage, the applicant sought costs on a substantial indemnity basis, including a request for costs against the respondent's lawyer personally under Rule 57.07(1).

The court noted that the respondent's lawyer had not been given a reasonable opportunity to make representations as required by Rule 57.07(3).

The court issued directions giving the applicant the option to withdraw the request or confirm it, in which case the respondent's lawyer would be given an opportunity to request a hearing and retain counsel.

The Estate of George Kargakos was successful on a motion for possession of a jointly-held property and sought partial indemnity costs of $38,607.62.

The respondent argued costs should be reserved to the trial judge, denied entirely, or reduced, and requested a 12-month payment period.

The court declined to reserve costs or deny them, finding the estate was entirely successful.

After considering the factors under Rule 57.01, including the lawyers' hourly rates and the complexity of the issues, the court fixed costs at $30,415.12 inclusive of fees, disbursements, and HST.

Due to the respondent's plea of hardship, the court permitted payment in quarterly instalments over 12 months.

The Royal Bank of Canada (RBC) was successful in its motion for summary judgment to enforce guarantees against the defendants.

This endorsement addresses RBC's request for costs of both the motion and the action on a substantial indemnity basis, as provided for in the guarantees.

The defendants argued for partial indemnity costs due to alleged unfair conduct by RBC.

The court found no reason to depart from the contractual provision for substantial indemnity costs, as the defendants' allegations of inequitable conduct were not substantiated.

The court also found the requested amount of $84,490.38, inclusive of fees, disbursements, and HST, to be fair and reasonable.

The court approved an all-inclusive settlement of $250,000 for the plaintiff, an incapable person, finding it reasonable and in her best interests.

The court also approved legal fees of $44,226.21 plus HST and disbursements, adjusting the amount requested by counsel and rejecting the original contingency fee agreement.

The management plan for the remaining settlement funds was not finalized, with the court seeking input from the Public Guardian and Trustee due to reservations about a proposed real estate purchase.