James A. Ramsay

The applicant buyer and respondent seller entered into an agreement of purchase and sale for commercial real estate.

The agreement included a financing condition that required the buyer to pay a second deposit 'at the time' of notifying the seller that the condition was waived.

The buyer waived the condition late in the evening on the deadline date but did not provide the second deposit until the following afternoon.

The seller took the position that the agreement was terminated.

The court found that, in the context of the factual matrix and the 'time is of the essence' clause, the parties intended for the deposit to be paid contemporaneously with the waiver.

The buyer's application for specific performance was dismissed, and the seller's application for a declaration that the agreement was void was granted.

The defendants moved to strike the plaintiffs' statement of claim and dismiss the action as frivolous, vexatious, and an abuse of process.

The plaintiffs had sued their mortgagees, mortgage broker, and solicitors, alleging collusion and a criminal interest rate after defaulting on their mortgages.

The court found the statement of claim was inadequately pleaded, failed to disclose a reasonable cause of action, and could not be cured by amendment.

Furthermore, proceeding with the action would constitute an abuse of process as it would re-litigate issues already determined in a related mortgage action.

The motion was granted and the statement of claim was struck without leave to amend.

The Applicant, Michael David Garland, moved for costs following his successful motion to change previous joint custody orders to expand his residence time with the parties' child.

The court found the Applicant had achieved decisive success in the underlying motion.

The Applicant sought full indemnity of $26,700 or partial indemnity of $19,500.

The Respondent, Candace Brouwer, opposed the amount.

The court determined that substantial indemnity was appropriate but reduced the amount to $12,000, considering that a smaller amount would have been reasonably contemplated and that the Respondent should not be responsible for the Applicant's choice of a lawyer who had to travel.

The applicants sought leave to appeal to the Divisional Court from an interlocutory order dismissing their motion to consolidate three separate actions.

The court denied leave, finding that the alleged "conflicting decision" was from a lower-level judicial officer (Master) and did not represent a conflict on a matter of principle, but rather an application of the same principles to different facts.

The court emphasized that a conflicting decision for the purpose of leave to appeal must be on a matter of principle and not merely a different factual outcome.

The motion judge's discretionary decision to deny consolidation was found to be amply supported by the evidence, considering the insufficient connection among the transactions and the different stages of the proceedings.

The applicant father sought to vary a joint custody order to expand his residence time with his seven-year-old daughter, whose primary residence was with the respondent mother.

The court first addressed a clause in a prior consent order restricting review until the child reached grade 6, clarifying it did not preclude review upon a material change in circumstances, as required by the Children’s Law Reform Act.

Finding a material change due to both parents establishing stable homes and the child's increased age, the court applied the Gordon v. Goertz framework.

The father's proposal for an extra overnight and extended alternate weekends was granted to maximize contact and smooth the schedule, despite the mother's objections regarding disruption and homework assistance.

However, the father's proposals for equal holiday time, including Christmas, were largely rejected to minimize long absences and maintain established traditions.

Summer vacation was expanded to two non-consecutive weeks, becoming consecutive in 2020.

The Applicant sought full indemnity costs of $21,661.06 for motions previously decided.

The Respondent argued for no costs or a proportional award.

The court reviewed the outcomes of the prior motions, noting the Applicant's success on significant issues like interim spousal support and production orders, and the Respondent's refusal of a settlement offer.

The court found the Respondent's overall litigation strategy to be one of delay, aiming to force a favourable settlement.

Consequently, the court awarded the Applicant $18,000 in costs, payable forthwith, to be treated as costs incurred to obtain spousal support, reflecting full indemnity less a minor adjustment for the Respondent's partial success on two minor motions.

The applicant sought declarations that a regulation prohibiting abusive or insulting language in Niagara Parks infringed his freedom of expression under the Charter, after he was charged for swearing at police officers while holding a profane political sign.

The court held that the regulation was not vague or overbroad, and that given the historical and actual function of the park as a natural and tourist attraction, abusive language was likely not protected speech.

Alternatively, any infringement was justified under section 1 of the Charter.

The application was dismissed in its entirety.

Following a successful application to enforce a settlement, the applicants sought costs against the respondent executor and the estate.

The court awarded full indemnity costs, including pre-judgment interest, to the applicants, finding their actual costs of $24,549.29 to be proven, reasonable, and foreseeable.

The decision detailed the distribution of estate funds, prioritizing the settlement payments, pre-judgment interest, and costs to the applicants over the respondent's residual entitlement.

The Crown appealed a sentence imposed for simple assault and assault with a weapon, arguing that the probation order was demonstrably unfit due to the omission of a condition prohibiting the respondent from residing in the same condominium building as the victim.

The original sentencing judge declined to impose this condition, citing concerns about the respondent's mental health and a reported suicide risk if his stable living arrangements with his mother were disrupted.

The appeal court, considering fresh evidence from both parties, upheld the original sentence, finding that the judge's conclusion was not unreasonable and did not result in a disposition that was clearly unfit, despite the victim's ongoing fear.

The applicant sought leave to proceed with custody motions under the Child and Family Services Act and interim custody relief.

The respondent sought an adjournment, and her counsel moved to be removed from the record.

The court granted leave for the applicant's motions and adjourned the interim relief motion on terms that maintained the children's residence with the paternal grandmother, where they had been living for three years.

The court also granted the respondent's counsel's motion to be removed from the record.

The decision highlighted the parents' ongoing high-conflict dynamic and psychological issues, which negatively impacted the children's well-being.

This endorsement addresses a costs motion brought by the Respondent following the Applicant's unsuccessful motion for document production, further questioning, and interim legal funding.

The court awarded partial indemnity costs of $10,000 to the Respondent, finding that while the Applicant's position lacked merit, it was not unreasonable enough to warrant substantial indemnity.

The parties, divorced in 2004, both moved to vary a child support order.

The applicant sought an increase in child support and extraordinary expenses based on an imputed income for the respondent.

The respondent sought to reduce arrears to zero and ongoing support to zero, citing a criminal record hindering employment and his role as a stay-at-home parent.

The court found a material change in circumstances due to the respondent's criminal record affecting his earning ability.

The court imputed an annual income of $15,150 to the respondent, ordering ongoing child support of $100/month and extraordinary expenses of $25/month, commencing September 1, 2016.

Arrears were fixed at $1,000, payable at $50/month.

The respondent's motions to change access and restore his driver's licence were dismissed due to lack of jurisdiction for the latter.

The applicant's motion to change was dismissed in its entirety, but she was awarded $100 in costs.

The applicant brought a motion to change a spousal support order, seeking an increase in quantum, and further moved for an order for production and disclosure of financial records, and for the respondent to pay approximately $37,000 for past and future accounting and legal fees under Rule 24(12).

The respondent sought termination of support.

The court dismissed the applicant's motions, finding that the requested financial disclosure was not relevant to the respondent's means for spousal support and was disproportionate to the issues at stake.

The court also declined to order the respondent to fund the applicant's expert witness or legal fees, noting the applicant had sufficient assets.

The applicant sought an increase in spousal support and retroactive support based on a separation agreement.

The agreement allowed for a review of support if the respondent obtained his millwright qualification, which he did, resulting in a significant increase in his income.

The court found that the applicant was entitled to an increase in ongoing support but denied retroactive support prior to the agreed review date.

Spousal support was increased from $209 to $600 per month.

The applicant brought a motion to find the respondent in civil contempt of court for allegedly breaching a consent order.

The order required the respondent to purchase a certified, e-tested car with a book value of not less than $5,000 for the applicant.

The applicant argued the provided car was appraised at $500, while the respondent, who is in the car business, testified that the value of the car plus the parts and his labour exceeded $5,000.

The court dismissed the motion, finding that the elements of civil contempt, including clear and unequivocal terms and wilful disobedience, were not established beyond a reasonable doubt.

The applicant and respondent, separated parents of five daughters, each brought a motion for temporary custody.

The court found that all five children had expressed a desire to distance themselves from the applicant, with the two younger daughters having climbed out a window at the applicant's home.

The respondent's decision to limit the younger children's time with the applicant was deemed to be in good faith.

The court established the current arrangement as the new status quo, granting temporary custody of the two younger daughters to the respondent, with the applicant having access three afternoons a week as per a plan developed with FACS Niagara.

Child support from the respondent to the applicant was terminated.

The defendant moved to dismiss the plaintiff's personal injury action due to the plaintiff's refusal to answer questions on examination for discovery and disruptive, incoherent conduct.

The court found the plaintiff's behavior, consistent with a serious psychological or psychiatric issue, rendered further discovery futile.

The action was conditionally stayed, allowing the plaintiff six months to seek to lift the stay if represented by a litigation guardian.

Prejudgment interest was stayed, and the plaintiff was ordered to pay the defendant's costs of $5,000.

The Applicant sought temporary spousal support, temporary custody or primary residence, and contribution to extraordinary expenses.

The Respondent sought custody or equal residence and the release of proceeds from the matrimonial home, claiming a portion was a loan from his father.

The court granted joint custody, with primary residence to the mother initially, transitioning to week-about if the father relocated to Niagara.

Retroactive and ongoing spousal support were ordered for the Applicant, with her income imputed to a full-time equivalent.

The court ordered the release of $42,000 from the matrimonial home proceeds to the Respondent's father, finding it was a loan, not a gift.

Extraordinary private school expenses were denied as unaffordable without grandparent contribution, but other extraordinary expenses were to be shared 75% by the Respondent and 25% by the Applicant.

The respondent moved to vary a child support and access order and to strike the applicant's answer for failure to attend questioning.

The court granted the temporary variation of child support and ordered the applicant to re-attend questioning.

While declining to strike the answer due to access issues, the court ordered the applicant to pay the examiner's booking cost and $4,000 in costs for the aborted discovery and motions, with $3,000 allocated for child support purposes.

The plaintiffs, Christopher McCullough and Nicholas Nossey, along with their Family Law Act claimants, sued the Hamilton Police Services Board and individual officers for damages arising from malicious prosecution, false imprisonment, negligent investigation, and breach of Charter rights.

McCullough and Nossey were jointly charged with murder in 1990; Nossey was acquitted, and McCullough's conviction was set aside on appeal, with the Crown declining a new trial.

The court found that the police had objectively reasonable grounds for the arrests of both McCullough and Nossey, dismissing all claims for malicious prosecution, negligence, and false imprisonment.