John deP. Wright

On an interlocutory motion in a family law proceeding, the moving party sought an order permitting the sale of jointly owned matrimonial property consisting of the matrimonial home and an adjoining parcel of land.

The responding party opposed the immediate sale and sought to preserve the opportunity at trial to obtain a vesting order transferring the other spouse’s interest in satisfaction of an anticipated equalization payment under s. 9(1)(d)(i) of the Family Law Act.

The court held that although a joint owner normally has a prima facie right to sale, when the property is a matrimonial home the moving party must demonstrate that the other spouse’s refusal is unreasonable.

In this case both parties ultimately contemplated sale, but disagreed as to timing and process.

The court permitted the sale to proceed subject to structured terms designed to allow the responding party an opportunity to purchase the property before listing and to ensure fair market value.

Three siblings challenged the validity of their father’s will on the basis of alleged undue influence by their youngest brother.

The court first determined that the will had been duly executed in compliance with the Succession Law Reform Act and that the testator had knowledge and approval of its contents.

The applicants argued that the youngest brother manipulated the parents and poisoned their relationship with the other children, leading to their disinheritance.

The court held that the burden of proving undue influence rested on the challengers and found that the evidence did not establish coercion or fraud sufficient to invalidate the will.

Instead, the court concluded that longstanding estrangement between the parents and the applicants explained the testamentary disposition.

Solicitors sought declarations regarding the validity of contingency fee agreements and the allocation of legal costs between injured plaintiffs and the Ontario Health Insurance Plan (OHIP) under s. 39 of Regulation 552 to the Health Insurance Act.

The court held the contingency fee agreements did not comply with the Solicitors Act and Regulation 195/04 because they improperly incorporated amounts arising from costs and failed to include mandatory statutory statements.

The court also interpreted the cost‑sharing formula under s. 39(6), concluding that a proportion of costs recovered in the action should be attributed to the plan when determining the plan’s share of taxable costs.

However, the total recovery used in the denominator must include both the plan’s and the injured person’s recoveries.

Declaratory guidance was provided for calculating the plan’s proportional liability for solicitor’s fees.

The defendant First Nation brought a motion to strike portions of the plaintiff’s statement of claim under Rules 21 and 25 of the Rules of Civil Procedure.

The plaintiff alleged defamation arising from a Band Council Resolution declaring her a trespasser on First Nation territory after her employment termination, claiming reputational and financial harm.

The defendant argued the claim was barred by res judicata and abuse of process because the plaintiff had previously obtained damages for wrongful dismissal in Small Claims Court.

The court held the earlier proceeding concerned a contractual wrongful dismissal claim, while the present action alleged a tort of defamation that arose later and constituted a continuing cause of action.

The motion to strike under Rule 21 was dismissed, though certain pleadings and evidentiary attachments were struck under Rule 25 with leave to amend.

On a voir dire in a drug prosecution, the accused sought to exclude evidence obtained from a BlackBerry device seized by police, alleging a breach of s. 8 of the Charter.

The Crown argued the accused lacked a reasonable expectation of privacy and alternatively had abandoned the device when he removed the battery and threw it to the ground during a police approach.

The court held that while possession alone is insufficient, the accused established a reasonable expectation of privacy through possession, knowledge of the password, and prior use of the device.

The court further held that the act of removing the battery and throwing the device did not amount to abandonment but was more consistent with an attempt to preserve privacy.

The accused therefore retained a reasonable expectation of privacy in the device and its contents.

The applicant father sought termination of child support and reimbursement of alleged overpayments after both adult children had ceased to be eligible for support.

The court found that both children were no longer entitled to support as of November 2006 and that the respondent mother, who was aware of this, had continued to receive payments.

Applying principles of retroactive support and fairness, the court held that a parent aware that support obligations have ended must act on that knowledge.

The father had continued paying $211 per month until April 2013, resulting in $16,036 in overpayments.

The court ordered termination of support effective October 2006 and directed that the Family Responsibility Office recover the overpayment from the respondent.

On a family law motion following separation after a long-term marriage, the applicant sought temporary spousal support, beneficiary designations, sale of the matrimonial home, occupation rent, and costs related to a motion to remove the respondent’s solicitor.

The court addressed the solicitor removal issue first and ordered the respondent to pay modest costs because the applicant was forced to bring the motion when the respondent declined to change counsel after a conflict arose.

On the support claim, the court declined to impute the higher income sought by the applicant and ordered modest interim spousal support of $200 per month.

The court ordered that the matrimonial home be listed for sale after April 1 with the applicant’s solicitor having carriage of the sale and the proceeds held in trust pending further order.

The claim for occupation rent was found to be premature and was referred to the trial judge.

A commercial tenant sought a declaration that its lease had been validly renewed for an additional five‑year term and alternatively requested relief from forfeiture under s. 20 of the Commercial Tenancies Act.

The court held that the renewal clause, as amended, was unenforceable because it required rent to be determined by future agreement without providing a mechanism such as arbitration, making it an agreement to agree.

The tenant also failed to satisfy the conditions precedent for renewal, including timely written notice and compliance with lease obligations.

The court further found that s. 20 of the Commercial Tenancies Act did not apply where the landlord was not seeking re‑entry during the existing term, and equitable relief was unavailable because the tenant sought to obtain a new right rather than preserve an existing one.

Waiver and estoppel arguments were rejected, particularly given a non‑waiver clause and the involvement of third‑party leasing arrangements.

In a family law proceeding concerning an eight‑year‑old child, the court addressed trial management issues relating to a dispute over the father's access to the child.

The parties agreed that the mother would have custody, leaving the principal issue for trial as the nature, frequency, and conditions of the father’s access, including whether access should be supervised.

The court directed the parties to prepare detailed calendars documenting proposed and exercised access, and ordered the exchange of factual statements before trial.

Additional procedural agreements were recorded, including potential electronic examination of the children's lawyer's report author and continuation of the temporary order pending trial.

The applicant brought a motion for interim spousal support under the Family Law Act following the breakdown of a 12‑year common law relationship with no children.

The applicant earned approximately $28,000 annually while the respondent earned about $82,000.

The respondent argued that income should be imputed to the applicant based on his training as a welder, but the court accepted his current income circumstances.

Applying the Spousal Support Advisory Guidelines and considering the parties’ respective needs and means, the court determined that interim support was appropriate pending trial.

The respondent was ordered to pay temporary spousal support of $875 per month.

In a will validity application under the Succession Law Reform Act, the respondents moved for a non-suit alleging that the propounders had failed to prove formal execution because one attesting witness did not actually see the testator sign the will.

The court considered whether the statutory requirement that the testator sign or acknowledge the signature in the presence of two witnesses was satisfied.

Applying the civil standard of proof and principles governing suspicious circumstances, the court held that the evidence supported a finding that the signature was made in the presence of both witnesses or, alternatively, acknowledged in the presence of the second witness when he was asked to sign as a witness.

The court rejected the argument that strict non-compliance invalidated the will and concluded that the statutory requirements had been met on the evidence.

Neighbouring landowners claimed a right to cross the defendants’ property based on an informal arrangement with the defendants’ predecessor in title and a registered notice of an unregistered right-of-way.

The defendants brought a motion for summary judgment to expunge the notice and dismiss the action.

The court held the arrangement created only a revocable licence rather than an easement, noting the parties had deliberately avoided creating a formal easement and the alleged agreement was vague, unwritten, and unenforceable under the Statute of Frauds.

The court further held that the arrangement would also be void under s. 50 of the Planning Act and declined to impose an equitable easement.

Summary judgment was granted, the notice was expunged from title, and the action was dismissed.

Following a negligence trial in which the plaintiffs recovered damages against a municipality for a landslide caused by a defective municipal storm sewer pipe, the court was asked to fix costs and prejudgment interest.

The plaintiffs sought substantial recovery of legal fees and disbursements, including expert expenses, and relied on an offer to settle that triggered substantial indemnity costs after the offer date.

The court reviewed the time-based calculations but emphasized that costs must ultimately be fair and reasonable under Rule 57.01 rather than a mechanical multiplication of hours and rates.

After adjusting hourly rates, reducing certain claims, and lowering expert fees considered excessive, the court fixed fees and disbursements and awarded prejudgment interest for limited periods due to delays attributable to the plaintiffs.

Parents appealed orders arising from a child protection proceeding in which the children were made Crown wards on a motion for summary judgment.

The mother appealed the denial of a trial regarding her claim for access, arguing procedural unfairness and inconsistent endorsements in the record.

The father appealed the Crown wardship order, alleging procedural unfairness, denial of cross‑examination, and improper reliance on delay and outstanding criminal charges.

The court held that natural justice required that the mother be granted a hearing on the issue of access, particularly given conflicting decisions in the record and questions surrounding the circumstances of her lack of contact with the children.

However, the father failed to demonstrate a palpable and overriding error in the wardship decision, and his appeal was dismissed.

A commercial tenant applied under s. 20 of the Commercial Tenancies Act for relief from forfeiture after the landlord re‑entered the leased restaurant premises for non‑payment of rent.

The court considered the equitable principles governing relief from forfeiture, including the landlord’s prior acceptance of late rent payments and the absence of notice insisting on strict compliance.

Although the tenant admitted arrears for several months of rent, the court held that persistent late payment did not preclude equitable relief where the landlord could be compensated.

The existence of a pending sale of the property to a purchaser seeking vacant possession was not a sufficient intervening interest to defeat the tenant’s claim.

Relief from forfeiture was granted on conditions requiring payment of arrears, utilities, and agreed costs.

Interim family law motion concerning the sale of a matrimonial home, spousal support, and interim equalization payments following separation after a long-term marriage.

The respondent sought orders requiring appraisal, repairs, and financial contributions to improve the value of the property prior to sale.

The court declined to require repairs or a formal appraisal and ordered that the property remain listed at its current price, emphasizing that delays could hinder a prompt sale.

The court granted the applicant exclusive possession of the home subject to the respondent’s right to access the property for staging and ordered the applicant to maintain carrying costs.

The court also ordered interim spousal support and monthly payments on account of equalization, considering the interaction between pension income and the principle against double recovery.

The applicant spouse brought a motion for interim spousal support and ancillary procedural relief including an extension of time to set the matter down for trial and leave to amend the statement of claim to plead constructive trust.

The court considered the Spousal Support Advisory Guidelines but emphasized that a means and needs analysis based on actual income and expenses remained critical.

Both parties’ budgets were scrutinized and adjusted to reflect reasonable expenses and resources.

The court determined that the applicant spouse had a monthly shortfall while the respondent spouse had a surplus capacity to pay.

Interim spousal support of $1,020 per month was ordered together with procedural relief extending the trial timetable and permitting amendment of the pleadings.

Following dismissal of an application seeking to compel a municipality to reconvey land, the court determined the appropriate costs award.

The municipality sought substantial indemnity costs after the applicants commenced a second proceeding seeking essentially the same relief following a dismissed action and expired appeal period.

The applicants argued the earlier decision was affected by the failure to raise a confirmatory municipal by-law.

The court concluded the by-law issue was irrelevant to the core legal question and that the application was unsuccessful, but exercised discretion on costs given the municipality’s conduct and the applicants’ belief that justice had been denied.

Partial indemnity costs and disbursements were awarded rather than the higher amount sought.

The applicant brought a motion to change a temporary order that had previously eliminated child support due to the respondent’s unemployment and anticipated access transportation costs following the applicant’s relocation with the child.

The court found a material change in circumstances because the respondent had since obtained full-time employment with significantly increased income.

The court considered the allocation of access transportation costs, noting that while non-custodial parents often bear such costs, the law does not require this in every case.

Given that the relocation created substantial travel expenses and the parties had historically shared those costs, the court determined it remained equitable to continue sharing them.

A temporary child support order was made, adjusting table support by accounting for child care expenses and a contribution by the applicant toward access transportation costs.

Following earlier reasons concerning forfeiture of firearms and related items seized during a criminal investigation, defence counsel sought clarification and correction of the disposition of certain exhibits.

The issues included replacement of seized dynamite, correction of exhibit classifications in the forfeiture schedule, return of items characterized as silencers or flash suppressors, and return of auxiliary equipment and personal property.

The court held that although generally functus officio after issuing its reasons, it retained jurisdiction to correct accidental slips or omissions in the schedule.

The court amended the schedule to correct the classification of certain items held in trust but declined to order the return or replacement of dynamite or most silencers due to insufficient evidentiary foundation.

Orders were made confirming the return of auxiliary firearm accessories and other seized non‑forfeited property.