John Mastorakos

The applicant father brought a motion for an interim parenting order seeking joint decision-making, shared parenting on a week-about basis, and an order that the child attend school in Belleville.

The respondent mother agreed to joint decision-making but sought a 2-2-5-5 schedule and for the child to attend school in Prince Edward County, where she had relocated.

The court granted the mother's request for a 2-2-5-5 schedule but ordered that the child attend school in Belleville, finding that the mother's unilateral relocation and change of school did not create a new status quo and that remaining in Belleville was in the child's best interests.

This appeal concerned a dispute over a shared boundary between lakefront cottage properties and the location of a dock.

The trial judge found the boundary to be ambulatory, extending to the water's edge, and that the land under the dock was adversely possessed, but the dock could not impede riparian rights.

The Court of Appeal dismissed both the main appeal, which challenged the boundary determination and the application of accretion/avulsion principles, and the cross-appeal, which challenged the adverse possession finding.

The court found no reversible error in the trial judge's determination of the boundary based on grantor's intent and upheld the adverse possession finding, noting it was supported by evidence.

This summary judgment motion concerned a failed real estate transaction where the vendor (Hastings Local Housing Corporation) terminated the Agreement of Purchase and Sale (APS) due to an inability or unwillingness to obtain severance for two properties that had merged titles.

The plaintiff-purchaser sought specific performance or damages.

The court found that the vendor had a contractual obligation and a duty to act in good faith to apply for severance under the terms of the APS (clauses 10 and 15) and the Planning Act.

The vendor's failure to apply for severance constituted a breach of contract.

While specific performance (transfer of property) could not be ordered without severance, the court declared the contract binding and ordered the vendor to pursue a bona fide application for severance within 60 days.

Following an 11-day trial regarding parenting arrangements, the successful applicant sought costs of $10,000.

The respondent argued for a nominal award of $2,000 due to his limited ability to pay.

The court found the applicant was entirely successful and the respondent's conduct unreasonably lengthened the trial.

Despite the applicant's full indemnity costs approaching $90,000, the court accepted her request for $10,000 as appropriate given the respondent's limited means.

The court also ordered that the respondent cannot initiate new proceedings without leave if he defaults on the first $2,000 installment.

The payor father brought a motion to change a final consent order, seeking to terminate his spousal support obligation due to his voluntary early retirement at age 60 and relocation to Mexico.

The court found that while the retirement and relocation constituted a material change in circumstances, the father could not avoid his compensatory support obligations by voluntarily leaving the workforce early.

The court dismissed the request to terminate support, instead increasing the monthly quantum based on updated imputed incomes and ordering that support continue until the father reaches age 65.

Following a seven-day trial where the plaintiff's claim for breach of a construction contract, negligent misrepresentation, and punitive damages was dismissed, the court addressed the issue of costs.

The plaintiff had wrongfully repudiated the contract, entitling the defendants to retain a $175,432.50 deposit.

The defendants had made three offers to settle, all more favourable than the judgment.

While the defendants sought substantial indemnity costs, the court found no egregious misconduct by the plaintiff to warrant such an award.

Instead, the defendants were awarded partial indemnity costs.

Following a successful motion for summary judgment, the applicant sought costs for the entire proceeding.

The applicant served offers to settle that compared well with the results achieved, and the respondent's uncooperative approach increased costs.

The court found the requested amount of $62,100.71 to be reasonable and proportional, and ordered the respondent to pay this amount forthwith.

The plaintiff's house was destroyed by fire, and she entered into a construction contract with the defendants to rebuild it.

Disagreements arose regarding contract terms, pricing, and completion dates, leading the plaintiff to terminate the contract before construction commenced and demand the return of her 25% deposit.

The court found that the plaintiff, not the defendants, repudiated the contract.

The initial payment was determined to be a non-refundable deposit, and the plaintiff was not granted relief from forfeiture, as the deposit amount was not found to be disproportionate to the defendants' damages or unconscionable to retain.

The applicant brought a summary judgment motion seeking orders for parenting arrangements, child support, and reimbursement for matrimonial home expenses.

The court granted joint custody of the two children, with primary residence to the applicant, and access to the respondent based on the children's wishes.

The respondent was ordered to pay $2,788.98 in child support for 2014 and provide income disclosure for subsequent years.

The court also ordered the respondent to reimburse the applicant $4,541.69 for insurance premiums and realty taxes related to the matrimonial home.

Furthermore, the respondent was required to designate the applicant as the irrevocable beneficiary of her life insurance policy in trust for the children.

The court found no genuine issue requiring a trial on these matters, dismissing other claims, and allowed the applicant to request an uncontested divorce.

The applicant brought a motion to find the respondent in contempt for failing to comply with a prior court order requiring him to sign a listing agreement for the sale of their jointly owned property.

The respondent brought a cross-motion to consolidate the civil partition action with a family law application he commenced in another jurisdiction.

The court applied the three-pronged test for contempt and found the respondent deliberately breached the clear and unequivocal order beyond a reasonable doubt, though he purged his contempt by signing the agreement in court.

The court dismissed the cross-motion, finding the two actions dealt with distinct issues and consolidation would cause unfair delay and expense.

Following a multi-day family law trial involving claims for divorce, equalization of net family property, spousal support, and unjust enrichment relating to improvements made to farm property owned by the wife's grandparents, the court determined costs.

The applicant had succeeded in obtaining a $50,000 judgment for unjust enrichment against the grandparents, while the respondent spouse obtained an equalization award exceeding $41,000 and dismissal of other claims occurred.

The court analyzed competing offers to settle under Rules 18 and 24 of the Family Law Rules and considered the relative success of the parties and the reasonableness of their settlement positions.

Although success was divided, the court found the applicant overall more successful, particularly on the unjust enrichment claim.

Costs were awarded to the applicant in a reduced and proportional amount.

The plaintiff moved to set aside a default judgment granted on the defendant’s counterclaim and to withdraw deemed admissions arising from a failure to respond to a request to admit.

Applying the common law test for setting aside default judgment, the court considered whether the motion was brought promptly after discovery of the judgment, whether the default was adequately explained, and whether there was an arguable defence on the merits.

The court accepted that the moving party only became aware of the judgment years later and that counsel’s medical issues contributed to the failure to respond.

The court also emphasized the importance of civility between counsel, noting that notice of the intention to seek default could have avoided the situation.

Finding an arguable defence and limited prejudice to the responding party, the court set aside the default judgment and the deemed admissions.

The applicant father brought an interim motion seeking sole custody of the parties’ children and permission to relocate them to Belleville.

The respondent mother opposed the motion and disputed allegations regarding her mental health and parenting capacity.

The court reviewed jurisprudence governing interim mobility applications, including the reluctance to disrupt the status quo absent pressing reasons or a strong likelihood of success at trial.

Finding significant conflicting evidence regarding the mother’s alleged mental health issues and the children’s expressed preferences, the court held that these matters required viva voce evidence and full evidentiary assessment at trial.

As there were no pressing circumstances justifying immediate relocation or custody change, the motion was dismissed.

Following a successful Rule 21 motion dismissing the plaintiffs’ action for lack of jurisdiction, the defendant sought costs.

The court received written submissions only from the defendant after the plaintiffs failed to respond within the time allowed.

The court reviewed the bill of costs and found the time spent and hourly rates to be reasonable given the motion work, including cross-examinations, pleadings, and preparation.

Applying the Rule 57 factors, the court awarded partial indemnity costs fixed at approximately 55% of a reasonable full indemnity bill.

The defendant brought a Rule 21 motion to dismiss an Ontario action alleging breach of contract and misrepresentation on the basis that the governing contract between the corporate parties contained arbitration and exclusive jurisdiction clauses requiring disputes to be resolved in New Jersey.

The plaintiffs argued the claim against the defendant was personal and therefore outside the contractual forum selection clause.

The court held that the pleadings, read as a whole, demonstrated the dispute arose from the corporate relationship governed by the fabricator agreement, despite the plaintiffs discontinuing the action against the corporate defendants.

No strong cause was shown to avoid enforcement of the contractual arbitration and jurisdiction provisions.

The action could not proceed in Ontario and was dismissed.