John G. Illingworth

The court heard three motions in related civil and family law actions to determine the distribution of $100,000 held by the Accountant of the Superior Court of Justice.

The funds were the remaining net sale proceeds of a property previously owned by the respondent.

The parties disputed the interpretation of the family law Minutes of Settlement regarding the calculation of the applicant's 50% share, specifically concerning add-backs for legal fees and whether the respondent could deduct his civil litigation legal fees.

The court found that only the legal fees attributable to the family law file should be added back and that the respondent was not entitled to deduct his civil litigation fees from the amount subject to division.

The plaintiffs were wholly successful on a motion requiring surplus sale proceeds from the defendant's property to be paid into court.

They sought costs of $20,000 payable from the funds in court, while the defendant argued for $3,000 to $6,000.

The court fixed costs at $12,500 inclusive of disbursements and HST, balancing the indemnity principle with access to justice.

The court declined to order the costs payable from the funds in court, as other parties might have claims against those funds.

The Plaintiffs brought a motion under Rule 45.02 of the Rules of Civil Procedure for an order requiring surplus sale proceeds from the Defendant's property to be paid into court, or alternatively, for an interlocutory injunction.

The dispute stemmed from a verbal agreement between the Defendant (father) and Plaintiff Tang (daughter) for the purchase of a property, which the Defendant denied.

The court found that the Plaintiffs had asserted a legal right to the specific fund through proprietary estoppel and unjust enrichment, demonstrating a strong prima facie case.

The court also determined there was a real and significant risk that the Defendant would dissipate the fund, potentially defeating the Plaintiffs' claims.

The motion was granted, ordering the surplus proceeds to be paid into court.

Competing summary judgment motions arose from acrimonious litigation following a lawyer's withdrawal from a Thunder Bay law firm and related management partnership.

The court held that summary judgment was inappropriate because multiple interrelated claims, including breach of trust, slander, defamation, and a separate substantial claim for work in progress and disbursements, would proceed regardless, creating risks of duplication and inconsistent findings.

In resolving factual matters relevant to case management, the court found the withdrawing partner did not actually leave the partnership until November 11, 2011, and that the associated family trust was required to withdraw from the management partnership on the same date.

Both summary judgment motions were dismissed and no costs were awarded.

On a motion for temporary custody in a high-conflict matrimonial dispute, each parent sought sole custody, exclusive possession of the matrimonial home, and related relief.

The court considered extensive affidavit evidence concerning caregiving history, allegations of domestic violence, and the parties’ respective ability to support the children’s relationship with the other parent.

Applying the best interests test under s. 16 of the Divorce Act, the court found that both parents had historically participated in caregiving but expressed concern that the mother’s hostility toward the father risked undermining the children’s relationship with him.

On an interim basis, the father was granted custody and exclusive possession of the matrimonial home, with the mother receiving regular parenting time.

The Office of the Children’s Lawyer was requested to conduct a social work investigation for purposes of the eventual trial.

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.