Richard R. Marks

The respondent father brought an emergency motion seeking immediate joint custody and a week-about parenting schedule for an 11‑month‑old child.

The applicant mother opposed and sought sole custody with limited evening and weekend access for the father, along with child support.

The court held that the existing status quo, in which the child had primarily resided with the mother since birth, should not be materially altered on an interim basis given unresolved concerns about the father’s substance use and the condition of his residence.

The court ordered the child’s primary residence to remain with the mother while providing structured access for the father and requiring both parties to disclose information regarding substance use and home conditions.

Interim child support was also ordered.

The appellant appealed the dismissal of her solicitor's negligence claim and the award of full indemnity costs against her.

The claim arose from advice regarding a separation agreement and the treatment of a severance payment.

The Court of Appeal upheld the trial judge's findings that the solicitor did not breach the standard of care and that the appellant suffered no damages.

However, the Court found the trial judge erred in awarding full indemnity costs based on the appellant's conduct at trial.

The trial costs award was reduced from $160,706.99 to $60,000 on a partial indemnity scale, emphasizing the principle of proportionality.

Following a summary judgment motion in a medical negligence action where the plaintiff was largely successful, the court determined the appropriate costs awards.

The plaintiff sought substantial indemnity costs, which the court denied, finding the defendants did not act unreasonably in bringing the motion.

The court awarded the plaintiff $54,000 in partial indemnity costs after reducing the claimed hours for reasonableness.

The court also awarded the defendants $7,500 for their partial success on the motion and awarded Dr. Penning $12,000 for the dismissal of the action against him, with these amounts to be set off against the plaintiff's award.

The appellant settled its claim with the hospital and sought to amend its statement of claim to proceed against the remaining defendants for their several liabilities, as contemplated by the settlement.

The motion judge refused to allow the amendment.

The Court of Appeal allowed the appeal, finding that the proposed amendments fully disclosed the terms of the settlement and restricted the claim against the remaining defendants to what was permitted by the settlement.

The appellants appealed the trial judge's decision allowing the respondents' claims for the balance of a vendor take-back loan and wrongful dismissal, and dismissing the appellants' action for breach of contract and fiduciary duty arising from a complex business sale.

The Court of Appeal upheld the trial judge's interpretation of the contractual documents, finding that the non-competition covenant had to be read in conjunction with a mutual undertaking that granted a right of first refusal for distribution contracts.

The Court also agreed that the respondent did not owe a fiduciary duty to the appellants, as the parties were at arm's length and of equal strength.

The appeals were dismissed.

The appellant law firm sought an interpleader order to pay trust funds into court.

The application judge ordered the payment of those funds, plus an additional amount that the law firm had already applied toward unpaid legal fees.

On appeal, the Court of Appeal held that an interpleader order was not available for the additional funds because the law firm claimed a beneficial interest in them and was not a disinterested stakeholder.

The appeal was allowed, and the order was varied to exclude the disputed funds.

The appellant and respondent signed a cohabitation agreement in 1986 that included a mutual waiver of spousal support.

After their separation in 1997, the appellant sought to set aside the waiver under s. 33(4) of the Family Law Act and claimed spousal support.

The trial judge dismissed the claim, applying the stringent test for setting aside an entire domestic contract.

The Court of Appeal allowed the appeal, finding the trial judge erred by not focusing on whether the waiver resulted in unconscionable circumstances at the time of the application.

Given the appellant's age, unemployability, and modest pension compared to the respondent's substantial wealth, the court found the circumstances unconscionable, set aside the waiver, and ordered spousal support of $3,500 per month.

The appellants appealed the dismissal of a medical malpractice action arising from the death of a patient undergoing treatment for tuberculosis.

The appeal focused on recusal, alleged negligence in the physician’s monitoring and follow-up system, and causation.

The court held that, although the trial judge had improperly received information caught by Rule 50.03, the circumstances did not give rise to a reasonable apprehension of bias requiring recusal.

The court further held there was no basis to disturb the findings that the follow-up system did not establish negligence on the physician’s part and that any failure of follow-up did not cause or contribute to the death, because the accepted evidence showed no signs of hepatitis at the critical January assessment.