John Leigh Daboll

The moving party sought leave to appeal the order of McKenzie J. dated May 17, 2024.

The Divisional Court dismissed the motion for leave to appeal without costs.

The appellant appealed a Small Claims Court judgment awarding the respondent $27,580 for an outstanding landscaping invoice.

At trial, both parties were self-represented.

The deputy judge heard evidence from both parties but did not permit either party to cross-examine the other, despite conflicting evidence regarding who requested changes to the grading plan and the actual balance owing.

The Divisional Court allowed the appeal, finding that while the Small Claims Court operates in a summary manner, the failure to allow cross-examination or otherwise test the conflicting evidence constituted a breach of procedural fairness.

A new trial was ordered before a different deputy judge.

The appellant appealed a finding of contempt for failing to comply with a consent order requiring the parties to enroll their children in counselling to facilitate effective co-parenting.

The motion judge found beyond a reasonable doubt that the appellant wilfully obstructed the counselling process.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's factual findings or interpretation of the order.

Following the release of the court's decision on the appeal, the parties made written submissions on costs.

The respondent was awarded costs on a partial indemnity basis fixed at $12,000, inclusive of taxes and disbursements.

The appellant appealed a summary judgment dismissing his claims for trespass and intentional infliction of mental anguish against a security company and its principal.

The respondents had installed a security system at a home owned by the appellant, at the request of his estranged common-law partner who had exclusive possession of the home while the appellant was subject to bail conditions prohibiting his attendance.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the estranged partner had the authority to permit access, precluding both the trespass and mental suffering claims.

The applicant father brought a motion to have the respondent mother found in contempt of a June 19, 2017 order requiring the children to be enrolled in counselling.

The court found the mother in contempt, determining that she willfully obstructed the commencement of counselling, despite the clear terms of the order and previous judicial directions.

The mother's actions were found to have contributed to protracted litigation and the children's emotional distress.

The applicant sought sole custody of the parties' four children and child support, while the respondent sought joint custody and shared residence.

The respondent had been unemployed, lost his driver's licence due to a drinking and driving conviction, and lacked suitable housing.

The court awarded sole custody to the applicant with access at her discretion.

The court also imputed an annual income of $40,000 to the respondent for ongoing child support and ordered the respondent's share of the matrimonial home proceeds to be applied to retroactive child support and costs.

The respondent moved to dismiss the applicant's application for a constructive trust over a shared property, arguing the Superior Court of Justice, Family Court lacked jurisdiction.

The court found the application was properly brought in the Superior Court of Justice and that the Family Law Rules applied because the parties' arrangement was made in anticipation of cohabitation.

The respondent's motion was dismissed, his separate civil proceeding was permanently stayed, and he was enjoined from entering the property.

This costs endorsement followed a motion for security for costs where the defendants were partially successful, obtaining an order for $18,000 in security despite requesting $55,000.

The court determined that the defendants, as the successful parties on the underlying motion, were entitled to costs, though less than complete partial indemnity due to their partial success.

Costs were fixed at $6,000 all-inclusive, payable by the plaintiffs to the defendants within 30 days.

The defendants moved for security for costs against the corporate plaintiffs under Rule 56.01(1)(d), alleging insufficient assets in Ontario.

The plaintiffs claimed impecuniosity caused by the defendants' conduct and a meritorious claim.

The court found the defendants met the initial onus regarding insufficient assets.

However, the plaintiffs failed to provide robust financial disclosure, including that of their shareholders, to prove impecuniosity.

The court also found the plaintiffs' impecuniosity was not caused by the defendants' conduct and that their claim, while not devoid of merit, did not meet the higher standard of having a good chance of success.

Consequently, the motion for security for costs was granted, ordering the plaintiffs to pay $20,340 into court.

The parties separated after a 13-year cohabitation and 11-year marriage.

The applicant sought to resolve issues of spousal support, child support, and the timing of an agreed $90,000 equalization payment.

The court imputed income to both parties, finding the respondent was underemployed and the applicant had unexplained expenses exceeding his declared income.

The court dismissed the respondent's claim for ongoing spousal support, finding her entitlement was satisfied by previous payments from the family business.

The applicant was ordered to pay ongoing child support and retroactive arrears, with the equalization payment delayed until company mortgages become due or within three years.

The respondent property owner initially sought retroactive reclassification of his property, but amended his application to seek a fairness hearing regarding his municipal taxes.

The application judge reduced the respondent's taxes owing to $3,000, relying on inherent and equitable jurisdiction.

The municipality appealed.

The Divisional Court allowed the appeal, holding that the Assessment Act and Municipal Act provide a comprehensive statutory mechanism for tax assessment and collection, and the application judge lacked jurisdiction to circumvent this framework to alter property classifications or reduce taxes.

The appellant appealed the trial judge's orders regarding joint decision-making for the medical treatment of the child of the marriage and the costs award in favour of the respondent.

The trial judge had ordered joint responsibility for medical decisions, requiring the parties to follow the primary care doctor's advice while permitting naturopathic remedies in conjunction with medical services.

The Court of Appeal dismissed the appeal, finding no palpable or overriding error in the medical decision-making orders and no error in principle in the discretionary costs award.

The appellant father appealed an order requiring him to pay child support in accordance with the Guidelines.

He argued that the separation agreement, which gave the mother a greater share of the matrimonial property and in which he waived spousal support, constituted 'special provisions' benefiting the children.

The Court of Appeal dismissed the appeal, agreeing with the applications judge that parents cannot contract away a child's right to support and that there was no objective, child-centred evidence of a special benefit to the children from the separation agreement.

The father was ordered to pay costs of $4,500.