Kenneth E. Wise

This decision addresses the division of proceeds and adjustments following the partition and sale of jointly owned property at 7 Main Street, Odessa, Ontario.

The court considers the parties’ respective claims for adjustments, including occupation rent, reimbursement for expenses, and capital contributions.

The court orders that the respondent be reimbursed for half of his maintenance and repair costs, and that both parties share equally in increased mortgage interest payments since the mortgage expired.

The respondent is given 30 days to negotiate a buyout of the applicant’s interest, failing which the property will be listed for sale.

The court remains seized of the sale process to resolve any disputes.

This decision concerns the costs of a motion in which Sullivan Mahoney LLP, a law firm, successfully opposed Grace McDonald's attempt to set aside a Report and Certificate of Assessment regarding legal fees.

The court considered the appropriate amount of costs to award, particularly in the context of a law firm representing itself.

The court ultimately awarded $2,500 in costs to Sullivan Mahoney LLP, finding that while the firm was entitled to costs, there was insufficient evidence to support a higher award based on lost opportunity costs.

The court considered an application under the Partition Act for the sale of a jointly owned property in Odessa, Ontario.

The applicant, Caralee Madelyn Paul, sought partition and sale of the property she co-owned with the respondent, Jeffrey Dean Baker.

The court reviewed the parties’ financial contributions, the trust agreement, and the circumstances of the property’s acquisition.

The court found that both parties were 50% beneficial owners and that the applicant was entitled to partition and sale, subject to accounting for contributions and adjustments.

The court rejected arguments based on resulting trust, unjust enrichment, and oppression, and set out a process for adjustments, potential buyout, and sale.

The court considered costs following a 13-day trial in which the plaintiff’s claim was dismissed in its entirety.

The defendants sought substantial indemnity costs, relying on their complete success and the plaintiff’s rejection of settlement offers.

The court reviewed the scale and quantum of costs, the parties’ conduct, and the complexity and importance of the case.

Ultimately, the court awarded the defendants $155,000 in costs on a partial indemnity basis, less a prior set-off, declining to order substantial indemnity or to affect property held in trust in related proceedings.

The decision concerns an appeal by Grace McDonald, a former client, seeking to set aside a Report and Certificate of Assessment made by an assessment officer regarding legal fees charged by Sullivan Mahoney LLP.

The court reviews issues of procedural fairness, the assessment of paid and unpaid accounts, the enforcement of filing deadlines, and the process for objecting to an assessment officer’s decision.

The court finds no error in the assessment officer’s conduct or application of the law and dismisses the appeal.

The plaintiff, Rana Alsous, claimed a beneficial interest in a property (227 Rymal Road) held in the names of the defendants, Bishara and Duaa Hadweh, asserting it was purchased with her funds or gifted to her.

The defendants contended the property was beneficially owned by their father, Ibrahim, who provided the funds for an earlier property (536 Upper Sherman Avenue) which was then used for Rymal Road.

The court found that Ibrahim provided the funds for Upper Sherman, and Rana held it in a resulting trust for him, failing to rebut this presumption.

Consequently, the proceeds from Upper Sherman, used for Rymal Road, also belonged to Ibrahim, and the defendants held Rymal Road in trust for him.

The plaintiff's claim was dismissed.

The appellant appealed a trial judge's determination of the parties' separation date, arguing it was 2011 instead of 2019.

The appellant challenged the trial judge's weighing of evidence and credibility findings, specifically regarding income tax returns, residence representations, and domestic violence evidence.

The Court of Appeal found no reversible error, deferring to the trial judge's findings of fact and credibility, which were supported by the record.

The appeal was dismissed, and costs were awarded to the respondent.

This motion for directions concerned the care and property of incapacitated parents, whose powers of attorney were disputed.

Section 3 counsel for the parents sought directions due to alleged interference by one respondent, Mei Chu Sylvia Hsieh, who was the attorney for care and property.

Despite a prior court order, Mei Chu Sylvia Hsieh allegedly stopped auto-pay for pharmaceuticals, withheld OHIP codes, and took the parents to the bank, leading to frozen accounts.

The court affirmed its jurisdiction under the Substitute Decisions Act, 1992, Rules of Civil Procedure, and its parens patriae authority to protect the parents' best interests.

The court granted the requested order for directions to prevent further interference and ordered disclosure of medical records, emphasizing the need for cooperation among parties.

The motion sought to consolidate a family proceeding (divorce, support, equalization) and a civil proceeding (beneficial ownership of property based on trust).

The court applied a two-step test for consolidation, considering Rule 6.01 of the Rules of Civil Procedure by analogy.

The court found no common issue of law and determined that the common factual issue (Rana's beneficial interest in the Rymal Property) was not of sufficient importance to warrant consolidation, as it was a discrete issue in the civil case and only one aspect of the broader family equalization claim, which itself was not ready for trial due to a pending appeal.

Furthermore, the balance of convenience did not favor consolidation, given that the issues were not interwoven, there was no significant risk of inconsistent findings (as the civil finding would be determinative for the family equalization), the civil proceeding was simpler and ready for trial, and the motion was brought at a late stage.

The court distinguished Bledin v Bledin.

The motion to consolidate was dismissed.

The appellant, as estate trustee, appealed a lower court decision that found the respondent was entitled to funds in joint bank accounts.

The appellant argued the application judge erred by failing to apply the presumption of resulting trust and by concluding that the respondent was entitled to the funds without corroborating evidence of a gift.

The Court of Appeal dismissed the appeal, finding that the presumption of resulting trust argument was not raised in the court below and that there was sufficient corroborating evidence to support the application judge's finding that the deceased intended to gift the amounts in the accounts to the respondent.

An appeal concerning the appointment of guardians for a 90-year-old mother's property and personal care.

David and Edward Carey, who were originally applicants, withdrew their support for the applicants' position and sought to be appointed as appellants.

The motion judge had previously removed them as applicants without making them respondents.

The appellate court dismissed the appeal, finding no error in the motion judge's decision to appoint guardians in the best interests of the mother.

The court ordered David and Edward Carey to pay costs of $5,000 to the respondents.

This motion concerned the statutory jurisdiction of a construction lien master to use the enhanced powers under Rule 20.04(2.1) of the Rules of Civil Procedure when deciding a motion for summary judgment.

A master had dismissed a defendant's summary judgment motion and ruled in favour of the plaintiff, employing these enhanced powers.

The defendant sought an order refusing confirmation of the master's report.

The court held that Section 58(4) of the Construction Lien Act does not confer the powers of a judge upon a construction lien master, and therefore, masters lack jurisdiction to use the enhanced fact-finding powers explicitly limited to judges under Rule 20.04(2.1).

The defendant's motion was granted, the master's report was set aside, and the matter was returned for trial.

The appellant sought a review of a chambers judge's decision dismissing his motion for an extension of time to file a notice of appeal, which he had missed by two weeks.

The chambers judge found that while the appellant had formed the requisite intention to appeal and provided an adequate explanation for the delay with no prejudice to the respondent, he failed to demonstrate that there was merit to the proposed appeal.

The Court of Appeal upheld the chambers judge's decision, finding that the conclusory statements in the appellant's affidavit did not support an error and that the core findings on the summary judgment motion regarding the expiration of the limitations period and the appellant's lack of standing were unassailable.

The respondent father brought a motion for unsupervised overnight access to his two young daughters on alternate weekends and sought to terminate his child support obligation and rescind arrears, claiming his detention and strict bail conditions prevented him from working.

The applicant mother opposed and cross-moved for no access pending receipt of evidence from the Children's Aid Society and the Office of the Children's Lawyer.

The mother alleged a pattern of domestic violence, including forcible confinement and assault during a four-day period in June 2017.

The court found the allegations sufficiently concerning and ordered supervised access once weekly for two hours through the Children's Aid Society, pending further evidence.

The court rejected the respondent's request to terminate child support, finding evidence that he owned and controlled a substantial international shipping company with significant income available to him, inconsistent with his claim of minimum wage employment.