J.F. McCartney

The applicant sought the release of seized cash under s. 462.34 of the Criminal Code to fund legal expenses in pending criminal proceedings.

Police had seized more than $1 million in cash during a search that also uncovered drugs and other evidence.

The court accepted that the seized funds were available for potential release and that the applicant had established sole entitlement to the money despite arguments about possible competing claims.

However, the applicant failed to demonstrate financial need, as required under s. 462.34, given inconsistencies between his claimed lack of assets and evidence that he possessed substantial unexplained cash and lived in a mortgage-free home.

The application for release of funds for legal fees was therefore denied.

The appellant appealed a decision of the Social Benefits Tribunal upholding the denial of disability benefits under the Ontario Disability Support Program Act.

The appellant argued the Tribunal erred in its findings regarding his medication dosage for depression and misapplied the law by effectively requiring his impairment to be continuous rather than recurrent.

The Divisional Court dismissed the appeal, finding the Tribunal's factual conclusions were supported by the appellant's own testimony and that it correctly applied the statutory definition of disability.

The tenant appealed a decision of the Landlord and Tenant Board evicting him on the basis that the landlords required the basement unit for their daughter's use.

The tenant argued the Board erred in law by accepting an affidavit from the landlord on behalf of the 15-year-old daughter, failing to determine good faith, and ignoring the tenant's disabilities and the landlords' alleged breaches.

The Divisional Court dismissed the appeal, finding the affidavit acceptable given the daughter's age and concluding the Board had reasonably considered all other matters.

The corporate defendant appealed an order striking its statement of defence for failing to comply with an interlocutory order requiring it to retain new counsel or obtain leave to be represented by a non-lawyer.

The Divisional Court dismissed the appeal, finding the motion judge made no error in concluding the defendant's recalcitrance and failure to comply with the clear terms of the order warranted the severe penalty of striking its pleadings.

The appellants appealed an order requiring the individual appellant to pay the respondent $22,253.23 pursuant to a consent judgment based on minutes of settlement.

The appellants argued the motion judge failed to consider the factual matrix surrounding the settlement and misapplied section 30 of the OBCA.

The Divisional Court dismissed the appeal, finding that section 30 was not contravened because the corporate defendant was not ordered to pay for the shares, and that the clear terms of the consent judgment did not require reference to the factual matrix.

The applicant sought to vary access and child support provisions arising from a Florida divorce judgment after child support had been terminated when the children did not attend summer access visits with the respondent.

The court found it had jurisdiction and that a material change in circumstances existed since a prior Ontario application was dismissed.

Evidence demonstrated that the children relied primarily on the applicant for financial support while pursuing post-secondary education, and that the respondent had the ability to pay despite ceasing support in 2007.

The court imputed income to the respondent and reinstated retroactive child support, varied the access terms to reflect the children’s adulthood and autonomy, and ordered proportionate contribution to educational expenses.

The applicant brought a motion to change a final family law order arising from minutes of settlement concerning travel arrangements, child support, arrears, and access.

The court permitted modification of the travel clause allowing the applicant to take the child on vacations outside Ontario without consent if an itinerary is provided.

The court declined to increase child support, finding insufficient evidence to impute higher income to the respondent despite inconsistent earnings history.

Arrears exceeding $16,000 were acknowledged but no repayment schedule was fixed at the time.

The access provisions were varied by removing weekday access while maintaining a simplified schedule for special occasions, with exchanges to occur at an access centre.

Two third party defendants sought security for costs against a defendant/third party claimant under Rule 56.01 of the Rules of Civil Procedure.

The court found the defendant corporation was impecunious but concluded it would be unjust to require security for costs because the third party claims were intertwined with the main action and could effectively prevent the defendant from defending the action.

In relation to the second third party, the court also refused security due to the advanced stage of the litigation and delay in bringing the motion.

Both motions for security for costs were dismissed and costs were awarded to the defendant.

The moving party sought costs after bringing a motion to dismiss the action against it in a motor vehicle negligence claim.

The plaintiff had initially included the moving party as a defendant due to a potential vicarious liability theory but indicated willingness to discontinue once insurers confirmed that dismissal would not prejudice coverage claims.

The court found the plaintiff acted reasonably and did not prolong the proceedings.

However, the court concluded that one insurer’s delay in consenting contributed to additional procedural steps.

Costs were awarded to the moving party on a partial indemnity basis and apportioned primarily against that insurer.

The appellant appealed a conviction for committing an indecent act under s. 173(1)(b) of the Criminal Code after being found to have exposed his buttocks toward occupants of a passing vehicle.

The trial judge rejected the appellant’s explanation that his pants had accidentally slipped and accepted the testimony of the complainant witnesses.

On appeal, the court applied the reasonableness standard for reviewing verdicts and considered the credibility analysis conducted at trial using the principles from W.(D.).

The appellate judge held that the trial judge properly assessed credibility and reasonably concluded that the evidence established guilt beyond a reasonable doubt.

The conviction and the suspended sentence with probation were upheld.

Interim family law motions arising from a separation following a 13‑year marriage addressed parenting arrangements, support, exclusive possession of the matrimonial home, and sale of the home.

The court declined to determine custody pending further information and the involvement of the Children’s Lawyer, but ordered an interim alternating weekly residence schedule for the child.

Interim child support and spousal support were ordered based on the parties’ incomes and the circumstances of the marriage.

Requests for exclusive possession of the matrimonial home and for a non‑removal order preventing relocation of the child were denied, while the parties’ agreement to list and sell the matrimonial home was incorporated into the order.

The applicant father brought an ex parte motion to enforce a prior interim custody order granting him custody of three children after the respondent mother failed to return them following weekend access.

The court found that the existing custody order remained in effect and that the respondent had not complied with its terms.

The father sought a police enforcement order directing authorities to apprehend and return the children.

The court granted the motion and authorized any police force in Ontario to apprehend the children and return them to the father in accordance with the prior custody order.

The applicant father brought a motion seeking dismissal of the respondent mother's motion to change and an order preventing her from bringing further motions without leave of the court.

The underlying family litigation involved prior orders granting the father custody and restricting the mother's access, along with outstanding child support, costs, and equalization issues.

The court declined to dismiss the respondent's motion to change outright, finding that further procedural steps were necessary given the ongoing disputes regarding parenting and financial obligations.

The court ordered that the motion to change not proceed until a further case conference was held to consider potential involvement of the Office of the Children’s Lawyer, psychological assessment, mediation resources, and supervised access programming.

The applicant brought an uncontested motion to change seeking termination of existing child and spousal support orders made following divorce.

The court reviewed the parties’ financial circumstances, including the respondent’s unemployment following the collapse of the family business and his reliance on RRSP withdrawals while retraining for new employment.

The court held that one adult child remained a "child of the marriage" due to mental health difficulties and ongoing dependency.

Spousal support and child support obligations were not terminated but were reduced to nominal amounts given the respondent’s limited present income, while support for another adult child was terminated.

The appellants were successful on appeal, significantly increasing their recovery from the trial judgment.

The respondent sought costs based on a pre-litigation offer that exceeded the appeal award but was only open for five days.

The court noted the respondent made no Rule 49 offer, while the appellants made three, though for amounts greater than their ultimate recovery.

Given the recovery and the necessity of the appeal, the court awarded the appellants $15,000 inclusive of costs.

The applicant sought a divorce and corollary relief including parenting arrangements, child support, extraordinary expenses, spousal support, and pension division.

The court granted a divorce based on separation and addressed parenting of three children.

The court determined the children's primary residence should be with the mother, emphasizing the need for stability and continuity in the matrimonial home, while granting the father structured access.

The father was ordered to pay guideline child support and contribute proportionately to extraordinary expenses, while spousal support was reduced to a nominal amount due to limited means.

The respondent’s employment pension was ordered to be divided equally pursuant to the Pension Benefits Act.

The applicant housing co‑operative sought termination of a member’s membership and occupancy rights following complaints regarding smoking in hallways and smoke affecting other tenants.

The co‑operative’s board had previously warned the member that eviction could follow further complaints but later voted to terminate membership at a meeting held without providing the statutory notice required under s. 178(2)3 of the Co‑Operative Corporations Act.

The court held that the earlier warning letter did not constitute adequate notice of the later board meeting nearly three years later.

It also rejected the argument that the member had agreed to voluntarily relinquish her membership and tenancy during settlement negotiations.

The application to enforce the eviction and termination of membership was dismissed.

The appellant appealed a sentence imposed after pleading guilty to truancy under s. 30(5) of the Education Act.

The sentencing court had suspended sentence and imposed a period of probation.

The appellant sought to have the sentence set aside and requested an absolute discharge due to concerns that the conviction record could negatively affect future opportunities.

The Superior Court found that the matter had been commenced under the Provincial Offences Act and should have been tried in Provincial Offences Court rather than Youth Criminal Justice Court.

The court set aside both the conviction and sentence and directed that the matter be sent to Provincial Offences Court.

The court issued an endorsement as to costs following an appeal.

Having reviewed the written submissions from both parties, the court fixed the costs payable to the successful respondent at $4,000.

The plaintiffs appealed a trial judgment regarding a contract for the construction of a home that was destroyed by fire before completion.

The trial judge found the plaintiffs had terminated the contract and awarded the defendant $100,000 on its counterclaim for lost profits, while awarding the plaintiffs a small net judgment from insurance proceeds.

The Divisional Court upheld the finding that the plaintiffs terminated the contract but found the trial judge erred in calculating the insurance trust funds and the counterclaim damages.

The appeal was allowed in part, reducing the counterclaim to $20,000 and varying the net judgment in favour of the plaintiffs to $60,765.