James A. Brown

The plaintiffs obtained an ex parte temporary Mareva injunction against the defendants following the failure of their trucking joint venture.

The plaintiffs sought to continue the injunction and register a certificate of pending litigation, while the defendants moved to set it aside.

The court found that the plaintiffs failed to make full and frank disclosure on the ex parte motion, specifically omitting their own participation in transferring and dissipating corporate assets after insolvency.

As a result, the court set aside the temporary Mareva injunction nunc pro tunc and dismissed the plaintiffs' motion for interim equitable relief, finding they did not come to court with clean hands.

The proposed plaintiff, Frank Losak, sought leave to commence a class proceeding against the Financial Services Regulatory Authority (FSRA) and its CEO, Mark White, alleging misrepresentations related to the sale of Pace Savings & Credit Union securities while Pace was under FSRA's administration.

The court determined that leave was required under the Liquidation Order.

It granted leave for the claim against FSRA, finding a viable cause of action not barred by the Crown Liability and Proceedings Act or the Limitations Act, and that it would not undermine the liquidation.

However, leave was denied for the claim against Mark White due to statutory immunity under the FSRA Act, as no particulars of bad faith were provided.

The statement of claim against FSRA was allowed to be issued nunc pro tunc to February 28, 2024.

This decision addresses a motion to transfer an appeal from the Court of Appeal for Ontario to the Divisional Court.

The underlying appeal concerns a final order made solely under the Family Law Act by a Family Court judge, which dismissed a motion to change a separation agreement.

The Court of Appeal determined that appeals from final orders made exclusively under provincial legislation by a Family Court judge fall under the jurisdiction of the Divisional Court, as per s. 19(1)(a.1) of the Courts of Justice Act.

The argument regarding monetary jurisdiction was dismissed as irrelevant given the specific statutory provisions governing family law appeal routes post-2021 amendments.

The appellant brought a motion before a single judge of the Court of Appeal seeking further financial disclosure from the respondent, related to a prior Superior Court decision on child support and parenting time.

The motion was dismissed.

The court held that it is a court of review, not original jurisdiction, for enforcing contractual or legislative obligations, and that new evidence on appeal requires a fresh evidence motion before a panel, which was not properly brought or justified.

The applicant mother sought to change the child support provisions of a separation agreement, alleging a material change in the respondent father's income due to undeclared cash, improper business deductions, and other sources.

The separation agreement had fixed the father's "estimated" income at $70,000.

The court found that the applicant failed to discharge her onus to prove a material change in the respondent's income for the years 2016-2021, except for a one-time top-up payment for 2020.

The court dismissed the application to change the separation agreement, emphasizing that the starting point for assessing actual income is line 150 of the tax return, and rejecting most of the applicant's claims regarding imputed income from cash, lifestyle, and business deductions.

The appellant, Seyar Khairzad, appealed a Superior Court order that dismissed his motion to change a consent decision-making and parenting time order and increased his child support.

He also sought leave to adduce fresh evidence.

The Court of Appeal dismissed the appeal, finding no material error in the motion judge's decision regarding decision-making responsibility or parenting time, noting the history of domestic violence and communication issues.

The court upheld the imputed income for child support due to the appellant's non-compliance with disclosure orders.

The motion for fresh evidence was also dismissed, as the evidence was either available at the original hearing or would not have affected the outcome.

Costs were awarded to the respondent.

The Children's Aid Society brought a motion for an interim order to change the child's care and custody pending a status review application.

The child had been placed with the paternal grandparents under a final order.

The Society sought to return the child to the mother under supervision.

The court found that the mother was not yet ready for unsupervised care and that the grandparents and mother had recently agreed to a comprehensive joint parenting plan through mediation.

The court held that the child's best interests did not require a temporary change in placement and dismissed the motion.

The children's aid society brought a motion for an interim order to keep a one-year-old child in its temporary care and custody.

The father brought a cross-motion seeking the child's return to his care or placement with the paternal grandparents.

The mother supported the society's motion.

The court found reasonable grounds to believe the child would be at risk of harm if returned to either parent due to domestic violence, substance abuse, and lack of parenting experience.

The court also found that a kinship assessment of the paternal grandparents was incomplete and that placing the child with them would hinder the mother's access.

The society's motion was granted.

The maternal grandparents moved to be added as parties to a child protection application concerning their grandchildren, D.C. and E.C., and sought access.

The children had been removed from the mother's care due to severe sexual abuse by her boyfriend and deplorable living conditions.

The Catholic Children's Aid Society and the father opposed the motion, arguing the children were thriving with the father, adding parties would cause delay, and the grandparents lacked insight into the abuse.

The court dismissed the motion, finding that adding the grandparents was not in the children's best interests, would increase conflict, and their proposed plan was not realistic given the children's current stable placement with their biological father.

The parties, who are common law parents of two young children, separated in 2013.

The applicant father, an undischarged bankrupt, sought joint custody and asserted property claims, while the respondent mother sought child support.

The court dismissed the father's property claims due to his lack of standing as an undischarged bankrupt.

Finding the father to be intentionally under-employed and rejecting his claims of medical disability, the court imputed an annual income of $41,392 to him for child support purposes.

Sole custody was granted to the mother due to the high level of conflict between the parties.

The respondent brought a motion for leave to appeal an interlocutory order preserving one‑half of the proceeds of sale of a property pending trial of a constructive trust and unjust enrichment claim between former common‑law partners.

The moving party argued the motion judge erred by referring to the parties as married and by referencing equalization payments despite the parties not being legally married.

The court held that the motion judge correctly understood the claim as one grounded in constructive trust and unjust enrichment and properly applied the interlocutory injunction test under s. 12(b) of the Family Law Act to preserve property.

The court found no good reason to doubt the correctness of the order and concluded the proposed appeal raised no issue of general or public importance.

The court also ordered temporary guideline child support based on the payor’s Employment Insurance income and declined to order retroactive support due to insufficient evidence.

The defendants moved to enforce Minutes of Settlement reached at a civil pre‑trial requiring payment of $100,000 and execution of a release.

The plaintiffs argued the settlement was not binding because the wording of the release had not been finalized and alleged their former solicitor lacked authority and exerted undue influence.

The court held that a settlement agreement is a binding contract once essential terms are agreed, and the requirement for a release does not prevent formation of a binding agreement.

The court also reaffirmed that a solicitor of record has ostensible authority to bind clients in settlement absent clear notice to the contrary.

The motion was granted and the settlement enforced, with the plaintiffs ordered to deliver the executed release and the defendants to pay the settlement funds.