Joel Etienne

Following a five-day family law trial where the respondent was entirely successful, the respondent sought full recovery costs of $139,675.71.

The court found that the respondent beat her offers to settle and that the applicant acted in bad faith by hiding income, failing to make disclosure, and advancing spurious claims to drain the respondent's resources.

The court awarded the respondent her full claimed costs of $139,675.71, enforceable through the Family Responsibility Office as child and spousal support.

The parties separated after a 20-year marriage.

The applicant husband claimed he had no assets, lived on loans from friends, and sought an unequal division of net family property in his favour.

The respondent wife claimed a resulting trust in the matrimonial home, equalization, and support, alleging the husband hid assets and income.

The court found the husband failed to make full and frank disclosure, hid foreign assets, and received substantial undisclosed income and gifts.

The court granted the wife a resulting trust in the matrimonial home, imputed an annual income of $349,544 to the husband, awarded the wife a lump sum spousal support payment of $434,784, and ordered the net proceeds of the matrimonial home be paid to her in satisfaction of her claims.

The accused, a Brazilian national and refugee claimant, sought bail pending an extradition hearing to the United States on charges of human smuggling.

The Crown argued that the reverse onus provisions under s. 515(6) of the Criminal Code applied because the accused's prior criminal record in Brazil rendered him ineligible for refugee status, meaning he was not 'ordinarily resident in Canada'.

The court agreed that the reverse onus applied, but noted that even if it did not, the Crown had shown cause for detention.

The court found the accused posed a significant flight risk, a substantial likelihood of reoffending, and that detention was necessary to maintain confidence in the administration of justice.

The proposed surety was also deemed unreliable.

Bail was denied.

The appellant tenant appealed a Small Claims Court judgment ordering him to pay the respondent landlord for lost rent after he unilaterally terminated a residential lease.

The tenant claimed the unit was not fit for habitation due to the presence of mold spores detected by an ERMI test, which posed a risk to his daughter who suffered from mold toxicity.

The Divisional Court dismissed the appeal, finding no legal error in the trial judge's contextual application of the 'fit for habitation' test under s. 20(1) of the Residential Tenancies Act.

The court upheld the finding that the tenant breached the lease by terminating it without giving the landlord an opportunity to investigate or remediate the alleged mold issue.

The applicant sought a judicial recount of votes cast in the Electoral District of Brampton Centre in the June 7, 2018 Ontario provincial election.

The applicant, who received 12,803 votes, lost to Sara Singh of the Ontario New Democratic Party, who received 12,892 votes—a margin of 89 votes.

The applicant raised five grounds for a recount: non-citizens voting, discrepancies between tabulation forms, irregularities in "Bingo Sheets" unreliable witness testimony regarding missing votes, and disparities in ballot rejection rates between manual and electronic counting methods.

The court dismissed the application, finding that the applicant failed to establish a prima facie case under section 71(1) of the Election Act.

The court held that while the threshold for establishing grounds for a recount is modest, the applicant must still present credible evidence that could affect the election outcome.

The appellant husband appealed a trial judgment in a matrimonial property dispute.

The trial judge found that a declaration of trust and a $300,000 second mortgage were sham documents designed to defeat the respondent wife's interest in the matrimonial condominium.

The trial judge awarded the respondent an equalization payment of $100,500 and rejected an unequal division of property.

The Court of Appeal upheld the trial judge's findings, finding no basis to interfere with the credibility assessments or the detailed reasons for finding the documents to be shams.

The appeal was dismissed with costs awarded to the respondent.

The applicant sought to have a holographic will, allegedly made by his deceased brother, accepted as the last will and testament over a previously probated 1995 will.

The applicant had previously attempted to amend a statement of claim in a related action to plead this new cause of action, but that motion was dismissed by Lederman J. on the basis that the claim was statute-barred and the applicant failed to demonstrate due diligence in discovering the will.

The court held that the current application raised the exact same question decided by Lederman J. Applying the doctrine of issue estoppel, the court found the applicant was precluded from relitigating whether his claims were statute-barred.

The application was dismissed.

The applicant wife sought full indemnity costs following her success in the main judgment.

The court found the respondent's conduct, including entering a trust declaration and registering a second mortgage to defeat the applicant's claims, constituted bad faith under Rule 24(9) of the Family Law Rules.

Applying the factors under Rule 24(11), the court determined that full recovery costs were warranted.

Considering the importance and complexity of the application, the parties' reasonable and unreasonable behaviours, counsel rates, time spent, and disbursements, the court awarded the applicant $60,000 in costs, deeming it reasonable and proportionate.

The applicant sought an equalization payment, challenging the beneficial ownership of a condominium property registered in the respondent's name and a second mortgage against it.

The court found the trust declaration and second mortgage, purportedly in favour of the respondent's father, to be shams designed to defeat the applicant's entitlement to the matrimonial home.

The court concluded that the respondent was the beneficial owner of the property and awarded the applicant an equalization payment of $100,500, securing it with a charge on the property.

The respondent brought a motion on the eve of trial to amend his answer to add a claim for an unequal division of net family property under s. 5(6) of the Family Law Act.

The applicant opposed the motion, arguing it would cause prejudice.

The court dismissed the motion, finding that the proposed amendment was untenable as it lacked factual particulars to meet the exceptionally high burden for unequal division.

Furthermore, the court held that allowing the amendment at such a late stage would cause disadvantage to the applicant that could not be compensated by an adjournment or costs, and undermined the case management objectives of the Family Law Rules.

The plaintiff brought a motion for leave to amend his statement of claim and adjourn the trial.

He sought to add a new cause of action based on a holograph will he claimed to have recently discovered, which would entitle him to the entirety of his deceased brother's estate.

The court dismissed the motion, finding that the proposed amendments raised a new, statute-barred cause of action.

The plaintiff failed to demonstrate a triable issue of discoverability, as his explanation for misplacing and finding the will lacked due diligence.

Furthermore, the court held that granting the amendment would cause non-compensable prejudice to the defendants.

The accused, a pastor of a Spanish Pentecostal Church in London, Ontario, was charged with withholding material facts during border entry and attempting to aid and abet an undocumented individual to contravene immigration requirements.

The accused claimed duress, alleging that the hidden passenger threatened harm to his family in El Salvador if he did not smuggle him into Canada.

The court found the accused guilty on both counts, holding that the alleged threat of harm to the accused's parents lacked the temporal immediacy required for the duress defence and that the threat was too contingent and remote to constitute immediate harm.

The court also found the accused's account of events improbable and incredible.

The appellant, a Francophone, requested and was granted a trial in French before a judge and jury under section 530 of the Criminal Code.

However, the trial judge and the Crown prosecutor spoke almost entirely in English during the first five days of the trial, with simultaneous translation provided to the accused but not transcribed.

The Court of Appeal held that the accused's language rights under sections 530 and 530.1 were violated, as these provisions require the judge and Crown to actually speak the accused's official language, not merely understand it.

The curative proviso in section 686(1)(b)(iv) could not apply to such a significant violation.

The conviction was quashed and a new trial ordered.

The appellant, a Francophone, requested and was granted an order under s. 530 of the Criminal Code for a trial before a judge and jury that spoke French.

However, the trial judge and Crown counsel spoke English throughout much of the trial, and the first five days of testimony took place solely in English with translation provided to the accused.

No transcript of the interpretation was entered in the record during those five days.

The Court of Appeal held that the appellant's rights under ss. 530 and 530.1(e) and (g) were infringed, as the trial judge and Crown counsel are required to actually use the official language of the accused's choice, not just understand it.

The remedial provision in s. 686(1)(b)(iv) could not be applied to this violation.

The conviction was quashed and a new trial ordered.