Howard J. Wolch

In a family law trial to determine child support, both parties sought to impute income to the other.

The applicant mother, a pediatrician, had previously operated a medical professional corporation and filed a consumer proposal that forgave significant tax debt.

The respondent father, a university professor, had taken a sabbatical and received substantial undocumented funds from his family.

The court declined to impute income to the mother for underemployment or the forgiven tax debt, but included her pre-tax corporate income.

The court imputed $25,000 annually to the father for the family funds, finding them to be gifts rather than loans.

Given the shared parenting arrangement and the parties' similar imputed incomes, table child support was set off to zero, and section 7 expenses were ordered to be shared equally.

The mother's request for a sealing order was dismissed.

The plaintiff, A.C., sought leave under section 17(2) of the Crown Liability and Proceedings Act to continue a civil action for malicious prosecution against the Attorney General of Ontario.

This claim arose after criminal charges against A.C. for sexual misconduct, which had resulted in a mistrial, were subsequently withdrawn by the Crown due to no reasonable prospect of conviction.

The court dismissed the motion for leave, finding that A.C. failed to demonstrate a reasonable possibility of success, specifically by not providing sufficient evidence of malice on the part of the Crown.

The court emphasized that mere inconsistencies in evidence, lack of forensic evidence, or late disclosure (without proof of deliberate intent to subvert justice) do not meet the high threshold for proving malice required for malicious prosecution claims against the Attorney General.

In a dental malpractice action, the plaintiffs sought to have two experts accompany their counsel at the examination for discovery of the defendant dentist, and requested a ruling that these experts could still testify at trial.

The court permitted the plaintiffs' counsel to be accompanied by a specialist expert, but not a general dentist, to assist with highly technical subject matter.

However, the court declined to rule that the specialist could still testify at trial, warning that acting as part of the advocacy team at discovery would likely compromise the expert's objectivity and non-partisanship required for trial testimony.

This endorsement addresses costs following a decision on two motions in a family law dispute.

The Applicant sought financial disclosure, interim child and spousal support, and litigation expenses under Rule 24(18) of the Family Law Rules.

The court found the Applicant to be the more successful party, despite not achieving all requested relief and exhibiting some unreasonable behaviour (e.g., extraordinary support requests, misuse of credit card for legal fees).

The Respondent's failure to provide complete financial disclosure, delay in stating his support position, and unilateral termination of a credit card arrangement (potentially contempt of court) were deemed unreasonable.

The court awarded the Applicant $40,000 in all-inclusive costs, emphasizing proportionality and reasonableness, and clarified that prior payments made by the Respondent towards the Applicant's legal and expert fees via credit card should be credited against the Rule 24(18) order, not the costs award.

The applicants sought to set aside a motion judge's decision that dismissed their motion to extend time to appeal an earlier order.

The motion judge had found prompt intention but serious prejudice to respondents due to the applicant being judgment-proof with over $1,000,000 in outstanding costs, and a lack of merit to the proposed appeal, deeming it part of an abuse of process.

The Court of Appeal panel, reviewing under s. 7(5) of the Courts of Justice Act, upheld the motion judge's discretionary decision, finding no error in the application of the legal test for extension of time and noting the appeal was patently unmeritorious.

The panel dismissed the motion and awarded costs to the respondents.

The defendants brought a motion for security for costs against the corporate plaintiffs under Rules 56.01(1)(d) and (e).

The court found the defendants failed to meet their initial onus to show good reason to believe the plaintiffs had insufficient assets in Ontario.

The defendants relied on inadmissible hearsay evidence from an articling student and argued that the plaintiffs' failure to respond to a demand for evidence of assets was sufficient to meet the onus.

The court rejected this argument, holding that an unanswered demand does not reverse the onus onto the plaintiff.

The motion was dismissed.

The applicant brought motions for financial disclosure, interim child and spousal support, and interim disbursements for legal and expert fees in a high-net-worth family law dispute.

The respondent opposed the motions and filed late affidavit evidence.

The court struck the late and inadmissible evidence, ordered the respondent to produce the requested corporate and financial disclosure, and ordered interim child support of $7,207 per month and spousal support of $9,023 per month based on a three-year average income of $458,825.

The court also ordered the respondent to pay $150,000 for the applicant's expert fees and $75,000 for her legal fees under Rule 24(18) of the Family Law Rules.

The moving party brought a motion for leave to appeal the orders of the lower court judge.

The Divisional Court dismissed the motion for leave to appeal with no order as to costs.

The appellant tenant appealed an application judge's declaration that the respondent landlord reasonably exercised its discretion under a commercial lease to allocate realty taxes using a 'Proportionate Share' calculation.

The tenant argued the application judge committed an extricable error of law under the Wastech framework by misidentifying the purpose of the discretionary clause.

The Court of Appeal dismissed the appeal, finding no extricable error of law or palpable and overriding error in the application judge's interpretation of the negotiated lease, and held that the landlord's use of the proportionate share method was reasonable.

The applicant brought a motion for various family law relief, including retroactive and ongoing child support, section 7 expenses, and carrying costs for jointly owned properties.

The court determined the appropriate quantum of ancillary post-secondary education expenses to be included under section 7, finding that the adult child should contribute one-third of these expenses.

The court also addressed the respondent's claim for a credit towards carrying costs and apportioned costs for the motion and subsequent case conferences based on divided success and the parties' conduct.

The moving respondents sought confirmation of an associate justice’s report on a long-running accounting reference arising from oil well joint venture litigation spanning Ontario, British Columbia, and Alberta, and also sought to vary an earlier order requiring them to bear the costs of the reference.

The court applied the appellate-style standard of review governing confirmation of a referee’s report and held that the responding applicants failed to establish any error in principle, jurisdictional error, patent misapprehension of the evidence, or reviewable legal error.

The court upheld the associate justice’s reliance on a jointly selected neutral expert, the credibility findings made against the self-represented responding party, and the conclusion that the 500% cash-call clause in the EWA joint venture agreement was an enforceable contractual term rather than an unenforceable penalty.

The report was confirmed, the motion to vary the prior costs order was dismissed, and the responding applicants were denied costs of the accounting reference and of the motion.

The landlord applied for a writ of possession and to terminate a commercial lease, while the tenant applied for a declaration that the termination was invalid.

The dispute centered on the allocation of realty taxes and occupancy costs.

The court found that while the landlord's method of allocating taxes by square footage was a reasonable exercise of its contractual discretion, it could not charge the tenant for taxes related to the parking garage.

Furthermore, the landlord was not entitled to terminate the lease because it had previously agreed to defer tax discussions and had failed to provide the required annual estimates and reconciliations for occupancy costs.

The court also held that, in the alternative, the tenant would be entitled to relief from forfeiture.

The plaintiff successfully moved for an interlocutory injunction to prevent the defendant landlord from re-entering the leased premises.

The parties could not agree on costs.

The plaintiff sought costs payable immediately, arguing the defendant's conduct forced the urgent motion.

The defendant argued costs should be in the cause.

The court held that because the merits of the case would be decided shortly at an upcoming application, and most of the evidence on the motion related to the merits, the costs of the motion should be reserved to the judge hearing the application.

The plaintiff tenant sought an interlocutory injunction to restrain the defendant landlord from exercising a right of re-entry over leased commercial premises.

A dispute had arisen regarding the share of realty taxes payable by the plaintiff, and the defendant had issued a notice of default and attempted to re-enter the premises.

Applying the RJR-MacDonald test, the court found a serious issue to be tried regarding contractual interpretation, irreparable harm to the plaintiff's business and reputation if locked out, and a balance of convenience favouring the plaintiff.

The motion for an interlocutory injunction was granted.

A case conference was held after a scheduled 10-day trial was adjourned due to a lack of judicial resources.

The defendant hospital sought leave to bring motions for partial summary judgment and security for costs.

The court denied leave for the summary judgment motion, noting it should have been brought before the action was set down for trial, and directed that any motion for security for costs proceed through regular channels rather than on an urgent basis.

The court also ordered further discovery on the plaintiff's loss of income claim and directed counsel to select a trial date in 2022, emphasizing the unacceptability of further delaying a 10-year-old case.

The applicant sought to prove the deceased's 2020 Will and inter vivos transfers, while the respondent filed a Notice of Objection alleging lack of testamentary capacity and undue influence regarding both the 2016 and 2020 Wills, as well as the transfers.

The court reviewed the evidence, applying the minimal evidentiary threshold test for suspicious circumstances.

The court found that the respondent failed to meet this threshold for any of her grounds, and the applicant successfully addressed any potential concerns.

The respondent's Notice of Objection was struck.

The moving party brought a motion under Rule 59.06 to vary an interlocutory injunction that prohibited him from competing with or soliciting customers of the responding party.

The court found that the responding party had failed to pursue their case with reasonable dispatch, as pleadings were not yet closed 15 months after the injunction was granted.

Furthermore, the contractual non-competition and non-solicitation periods in the Professional Services Agreement had already expired.

The court granted the motion in part, terminating the non-competition and non-solicitation obligations against the moving party personally.

The applicant estate trustee brought a motion for directions to interpret an ambiguous residuary clause in the deceased's will.

The clause left the residue to 'my brothers sisters late brothers sisters nephews and nieces' without punctuation.

Applying the armchair rule and the presumption in favour of per stirpes distribution in family contexts, the court concluded the deceased intended a per stirpes distribution.

The estate was ordered to be divided into ten equal shares, with one share to each surviving sibling and one share divided equally among the children of each predeceased sibling.

The court addressed scheduling for a package of motions, including the defendant's motion to strike and the plaintiff's motions to add parties and seek leave to plead malicious prosecution.

The court determined that the two hours booked were insufficient and that the motions needed to be sequenced, with pleadings finalized before the motion to strike could be heard.

The plaintiff's motion to lift a publication ban from related criminal proceedings was directed to the criminal court judge who issued it.

The remaining motions were adjourned and scheduled for future dates.

The appellants appealed an arbitration award, arguing the arbitrator lacked jurisdiction and erred by proceeding in their absence after they refused to execute the arbitration agreement and did not attend the hearing.

The Superior Court of Justice dismissed the appeal, finding that the arbitrator correctly proceeded under section 27(3) of the Arbitration Act.

The court held that any jurisdictional objection must be raised before the arbitrator at the beginning of the hearing, which the appellants failed to do.