Louise L. Gauthier

The defendant brought a motion for leave to bring a motion after the action was set down for trial, seeking to compel the plaintiff to attend an independent neuropsychological examination.

The plaintiff opposed the motion, arguing that the defendant had sufficient time to arrange the assessment and that her condition was well-documented.

The court granted leave, finding that the plaintiff's late service of a new neuropsychological report constituted a substantial and unexpected change in circumstances.

Applying the factors for ordering a further medical examination, the court held that the defendant was entitled to respond to the plaintiff's expert report with a matching specialty report to ensure trial fairness.

The plaintiff was ordered to attend the examination, and the defendant was granted an extension of time to serve the resulting report.

The appellant appealed his conviction for sexual assault.

The appeal court found that the trial judge made several errors, including mischaracterizing the primary issue as a credibility contest, improperly relying on a prior consistent statement to bolster the complainant's credibility, applying an incorrect standard of consent (requiring "informed consent" in criminal law), and misapprehending expert evidence regarding the medical indication for the breast examination.

These errors led to a negative assessment of the appellant's credibility and potentially shifted the burden of proof.

The appeal was allowed, and a new trial was ordered.

The respondent father, James Dasti, brought a motion for summary judgment to change a 2009 joint custody order to sole custody in his favour, with discretionary access for the applicant mother, Angela Ransom, and child support.

Ransom opposed, alleging parental alienation and seeking fixed access and mandatory counselling.

The court granted Dasti's motion, finding a material change in circumstances and no credible evidence of parental alienation.

The mature child's clear and justified wishes, which aligned with Dasti's requests, were determinative of the issues, including custody, access, and control over medical/educational records and passport matters.

The Children's Aid Society appealed a temporary care order returning a child to the mother and sought a stay of that order pending appeal.

The court applied the three-part test for a stay, focusing on whether there was a serious issue to be tried.

The court found the Society failed to establish a serious issue, concluding that the motion judge's finding of speculative risk was entitled to deference and that the child could be adequately protected by a supervision order.

The motion for a stay was dismissed.

The applicant sought interim spousal support following a seven-year relationship with no children of the marriage.

The parties maintained separate finances during the marriage, except for a joint account for specific household expenses.

The court found no evidence of economic disadvantage, career subordination, or economic merger.

The motion for interim spousal support was dismissed as the applicant failed to establish a prima facie case for entitlement.

The Crown brought an application for an order permitting two child witnesses to testify via closed-circuit television (CCTV) with a support person present.

The accused consented to the use of CCTV but requested that defence counsel be permitted in the room with the witnesses during cross-examination.

The court denied the request, finding that allowing defence counsel in the room would defeat the purpose of section 486.2 of the Criminal Code and cause undue stress to the child witnesses.

The court ordered that the witnesses testify via CCTV with defence counsel remaining in the courtroom.

The moving party, a mortgagor in default, brought a motion to set aside a default judgment obtained by the mortgagee.

The mortgagee had obtained an order for substituted service while the mortgagor was overseas and subsequently secured default judgment and a writ of possession.

Applying the five-factor test under Rule 19.08, the court found that while the motion was brought promptly and the delay was explained, the mortgagor failed to demonstrate an arguable defence on the merits.

The court also found real potential prejudice to the mortgagee given the amounts owed and the modest value of the property.

The motion was dismissed.

The defendants, Kristopher Purdy (an ambulance driver) and The Corporation of The City of Greater Sudbury, brought a motion for summary judgment to dismiss claims of negligence arising from a motorcycle accident.

The plaintiff alleged that Purdy's operation of the ambulance caused the accident by startling traffic, leading an unidentified driver to brake suddenly, which forced the plaintiff to lay down his motorcycle.

The court found the plaintiff's expert report problematic, as its conclusions were based on inadmissible hearsay and contradicted by objective evidence (Automatic Vehicle Location video data).

The court granted the defendants' motion, dismissing the action against them, concluding there was no genuine issue requiring a trial.

This endorsement addresses the costs of a previous motion where the respondent was successful.

The respondent sought $8,954 in substantial indemnity costs, citing a Rule 18 Offer to Settle.

The applicant proposed $2,500 plus HST, arguing proportionality.

The court considered the Family Law Rules, particularly Rules 18 and 24, and the three purposes of costs awards.

Finding both parties reasonable and the underlying motion not entirely avoidable due to its complexity, the court awarded the respondent $3,500 plus HST, balancing the factors of success, settlement efforts, and income disparity.

The applicant mother and respondent father brought motions to determine their four-year-old child's school enrollment, specifically choosing between a French language school in Espanola and a French immersion school in Walden.

The court applied the best interests of the child test under the Children's Law Reform Act, considering factors such as stability, existing bonds with family members and friends, and the parents' ability to support the child's education.

The court ultimately ruled that the child's best interests would be served by attending the French language school in Espanola, maintaining the existing shared parenting arrangement with a suggested transportation plan.

John David Wickie brought a motion seeking an order to refrain the Family Responsibility Office (F.R.O.) from suspending his driver's license due to $94,801 in support arrears.

The motion was dismissed because it was not properly before the court, as Mr. Wickie failed to serve and file a Financial Statement and proof of income as required by the Family Responsibility and Support Arrears Enforcement Act and the Family Law Rules.

The court declined to overlook these procedural shortcomings, noting no compelling evidence of inequity.

Additionally, Mr. Wickie failed to establish a prima facie case for his related Motion to Change a Final Order, having not filed responding material in the original application, voluntarily left employment without disclosing reasons, and provided no evidence of seeking new employment.

Costs of $250 were awarded against Mr. Wickie.

The applicant sought an order for assessment of her former counsel's accounts, more than one month after payment, pursuant to the Solicitors Act.

The court found that there was an agreement for a 15% fee based on the amount recovered, which was not a contingency fee agreement under the Act.

The court also found no "special circumstances" to justify an assessment of the accounts, which had been approved and paid, well beyond the statutory limitation period.

The application was dismissed.

The defendant brought a motion seeking directions to allow its counsel to cross-examine the plaintiff's principal on an affidavit filed in a pending motion to remove the counsel of record.

The plaintiff opposed, arguing that the defendant's counsel previously represented the principal in matrimonial proceedings and possessed confidential financial information relevant to the current construction lien action.

The court applied the conflict of interest test from MacDonald Estate v. Martin and concluded that a reasonably informed person would be concerned about the potential misuse of confidential information.

The court prohibited the counsel from conducting or assisting with the cross-examination and denied the defendant's request to appoint a case management judge.

The applicant and respondent each brought motions concerning a temporary custody order, child support, spousal support, and compliance with previous orders and undertakings.

The applicant sought sole custody, increased child support, and section 7 expenses, while the respondent sought to dismiss the applicant's motion, vary custody to his care, and disentitle the applicant due to non-compliance.

The court found jurisdiction to vary the interim custody order, amended the order to reflect the children's primary residence with the applicant, increased child support, and adjourned issues of retroactive child support, section 7 expenses, and spousal support to trial.

The respondent's claims for disentitlement were dismissed.

Following a successful one-day family law trial regarding the interpretation of a separation agreement, the applicant sought costs of $10,000 to $13,000.

The respondent argued for no costs due to divided success on other issues resolved prior to trial.

The court excluded costs related to an earlier motion that were not reserved to the trial judge, and awarded the applicant $9,000 in costs.

The plaintiff brought a motion for summary judgment against her brother, his wife, and their two corporations for the repayment of a loan funded through her personal line of credit.

The defendants argued there were genuine issues for trial regarding the terms of the loan and whether the personal defendants were liable.

The court found no genuine issue requiring a trial, concluding that the documentary evidence established the loan was for the benefit of all defendants, had a one-year term, and was acknowledged by the defendants.

Summary judgment was granted against all defendants in the amount of $155,322.82.

The Crown appealed an acquittal for impaired driving and over 80mgs.

The trial judge had found that breath samples were not taken "as soon as practicable" because the respondent had waived his right to counsel, making police efforts to facilitate counsel contact an unreasonable delay.

The appeal court found that the trial judge erred by engaging in a minute-by-minute assessment of delay and misapplied the "as soon as practicable" standard.

The court also determined that the respondent's initial responses regarding counsel were ambiguous, not a clear and unequivocal waiver, and thus the police acted reasonably in facilitating counsel.

The appeal was granted, the acquittal set aside, and a conviction for over 80mgs was substituted, remitting the matter for sentencing.

This trial involved a self-represented husband and wife addressing numerous family law issues including custody, access, child support (retrospective and ongoing), spousal support, equalization of net family property, life insurance designations, and disposition of an RESP.

The court granted sole custody of the three children to the wife, established a detailed access schedule for the husband, fixed child support arrears, and determined the sharing of extraordinary expenses.

The court also ordered the husband to pay an equalization payment to the wife and irrevocably designate the children as beneficiaries of his life insurance policies.

The wife's claim for spousal support was dismissed in favor of child support, with leave to reapply upon a material change in circumstances.

The husband's claim for occupation rent was denied.

This case involved the interpretation of a separation agreement concerning child support and equalization payments.

The wife sought an interpretation that would retroactively adjust child support based on the husband's actual income from July 2009 to May 2011, leading to arrears and a faster exhaustion of the equalization payment credit.

The court, applying contract interpretation principles rather than the Divorce Act, found the agreement clear and unambiguous.

It upheld the husband's position that the agreed-upon child support of $2,500 per month was consistent with the Guidelines at the time of the agreement and that no arrears existed prior to its execution.

The wife's request for a retroactive adjustment and payment of $54,922 was denied.

The mother was entirely successful on a motion for sole custody of the children and sought full indemnity costs of $7,973.28.

The father, who became self-represented after the motion, failed to appear at the costs hearing.

The court found the father's position on the motion was unreasonable and unsupported by evidence, and his conduct was uncivil and abusive.

Although his conduct did not meet the strict threshold for bad faith or full indemnity costs, it justified an award on a substantial indemnity scale.

The court ordered the father to pay costs of $6,500 plus HST.