Louise L. Gauthier

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.

The plaintiffs, having been awarded damages for civil fraud and misrepresentation regarding a septic system and retaining wall, sought full or substantial indemnity costs.

The defendants argued for no costs or reduced costs, citing partial success of the plaintiffs' claims and their own settlement offers.

The court, considering the defendants' objectionable conduct, including civil fraud and high-handed actions post-transaction, awarded substantial indemnity costs to the plaintiffs.

The court balanced the plaintiffs' partial success and some inefficiencies against the defendants' conduct and failure to make reasonable offers.

This decision addresses cross-motions for interim custody, access, and child support.

The Mother sought sole custody, while the Father sought joint or shared custody with primary residence with him.

The court found the Mother was the primary caregiver before separation and was better able to provide consistent care due to her proximity to the children's school and stable work schedule.

The Father's unilateral decisions, lack of transparency regarding his new living arrangements, and disrespectful communication with the Mother raised serious concerns about his ability to prioritize the children's best interests.

The court rejected the Father's "status quo" argument, finding the current arrangement was unilaterally imposed.

Sole custody was granted to the Mother, with defined access for the Father and child support orders.

The Crown sought leave to adduce evidence of discreditable conduct, both from one count to another and extrinsic to the indictment, in a sexual assault case.

The central issue was whether the complainant's consent was vitiated by the accused's breach of his position of authority.

The court applied the similar fact evidence test, requiring a sufficient nexus and probative value outweighing prejudice.

The application was dismissed, as the court found insufficient commonality and nexus between the proposed evidence (from another employee and financial irregularities) and the sexual assault charge, particularly regarding the complainant's stated reason for consent and lack of direct threats.

Purchasers of a residential property sued the vendors over an undersized septic system, alleged misrepresentations about a loft apartment, water issues, a retaining wall defect, and a sprinkler system.

The court held that the vendors breached the agreement of purchase and sale and committed civil fraud by marketing the property as including a habitable loft apartment while installing or procuring approval for a septic system that was inadequate for the property as marketed.

The court found the vendors could not rely on caveat emptor or lack of due diligence in relation to that fraud, but rejected the claims for lost rental income, well water damages, plumbing damages, and sprinkler damages.

Damages were awarded for the cost of replacing the septic system and repairing the retaining wall, plus pre-judgment interest.

The defendant municipality brought a motion for summary judgment to dismiss the plaintiff railway company's action for unpaid invoices relating to railway crossing upgrades.

The defendant argued that the plaintiff's claim was barred by issue estoppel and res judicata, as a prior arbitration award between the same parties had already determined that the plaintiff made a material misrepresentation by failing to disclose that federal funding would not cover certain overhead charges.

The court agreed, finding that the issues in the current action were identical to those decided in the arbitration, and dismissed the plaintiff's claim as there was no genuine issue requiring a trial.

The plaintiff brought a motion to strike the defendant's statement of defence and counterclaim, which contained allegations of deceit, intimidation, and bad faith bargaining.

The defendant subsequently brought a motion to amend the pleadings.

The substantive issues were resolved on consent, leaving only the issue of costs.

The court found that the defendant's original pleading was flawed and that the plaintiff was justified in challenging it, but criticized both counsel for failing to resolve the matter without court intervention.

Applying principles of proportionality, the court awarded the plaintiff fixed costs of $6,000, significantly reducing the amount claimed.

The respondent Landlord and Tenant Board requested the court dismiss the appellant's appeal under Rule 2.1 of the Rules of Civil Procedure as frivolous and an abuse of process.

The appellant had named the Board as the respondent instead of the tenants, sought damages unavailable on appeal, and raised issues regarding a separate property.

The court found the proceeding was clearly abusive on its face and dismissed the appeal.

The accused brought an application for disclosure of a police handler's handwritten notes regarding a confidential informant.

The accused sought the notes to determine whether the informant's information was firsthand, arguing this was necessary to challenge a subsequent warrantless search.

The Crown opposed the application, asserting informer privilege and arguing the information was irrelevant as the reliability of the informant had already been established in a prior ruling.

The court dismissed the application, finding that because the value and reliability of the informant's information had already been determined in a previous Garofoli application, the handler's notes were no longer relevant.

The accused, charged with possession for the purpose of trafficking, brought a Charter application to exclude evidence seized during a vehicle search.

The police had stopped the vehicle and arrested the accused based on an anonymous tip that he was transporting drugs.

The court found that the tip was compelling, the informant was credible based on past interactions, and the police corroborated the information before the arrest.

The court held that the police had reasonable and probable grounds for the arrest and that the subsequent search was a lawful search incident to arrest.

The application was dismissed.

The plaintiff bank sought summary judgment against the defendant guarantor for a mortgage deficiency.

The defendant argued her guarantee was released due to lack of notice regarding mortgage renewal and the bank's negligence in withdrawing funds, and challenged the quantum of damages.

The court found that a default occurred and the guarantee remained valid and enforceable, as the mortgage was not renewed and the bank's errors did not release the guarantor.

However, the court identified genuine issues requiring a trial regarding the appropriateness of the claimed damages, including administrative fees, property management fees, real estate commission, and legal fees.

Consequently, the motion for summary judgment was denied, and a mini-trial was ordered to determine the quantum of damages.

The appellant, Adaline Garita Tejado, brought a motion for a stay of an Ontario Court of Justice order dated August 5, 2016, which directed the return of her two children to Webbwood, their former habitual residence.

The appellant had left Webbwood with the children due to domestic violence and was residing in a women's shelter in Mindemoya.

The motion also sought leave to appeal the August 5, 2016 order.

The court granted the stay of the order to return the children, finding that the appeal raised serious questions, the appellant and children would suffer irreparable harm if the stay was not granted, and the balance of convenience favored the appellant, particularly considering the children's best interests and the contradictory nature of the original order which granted the mother interim custody but required the children to return to a home she could not safely inhabit.

The applicant sought to exclude evidence obtained from two Informations to Obtain (ITOs) that authorized production orders and tracking warrants, alleging a breach of his s. 8 Charter rights.

The applicant argued the ITOs relied on unsourced and uncorroborated information from confidential informants, failing to establish reasonable grounds.

The court applied the totality of the circumstances test and found the informants' tips were compelling, credible, and sufficiently corroborated by police surveillance.

The court held the issuing justice could reasonably have found the requisite grounds and dismissed the application.

This endorsement addresses the costs of a consent motion for consolidation of a civil action and family law proceedings.

The moving party sought costs, arguing that the responding parties' delay in providing consent necessitated bringing a formal motion.

The court found that despite the delay, the motion ultimately proceeded on a consent basis.

The responding parties' counsel explained the delay was due to reconciling instructions from two clients (the lawyer personally and their insurer).

The court declined to award costs to the moving party, adhering to the general rule that consent motions do not attract costs unless unreasonable behaviour is demonstrated.

However, the court awarded modest costs of $500 to the responding parties for their preparation and attendance on the costs issue, acknowledging the helpfulness of their material and that the delay was not attributable to the moving party.

The appellant purchased a new truck that unexpectedly auto-accelerated to 150 km/h, causing a terrifying incident.

Inspections found no mechanical explanation for the malfunction.

The trial judge dismissed the appellant's claim for the cost of a replacement vehicle, finding no evidence of a defect.

On appeal, the Divisional Court held that the trial judge made a palpable and overriding error by failing to infer a defect from the unexplained failure of the vehicle during ordinary use.

The appeal was allowed and damages were awarded for the replacement cost.

The moving parties sought costs of $11,097.22 on a partial indemnity basis after successfully obtaining an adjournment of a judicial review application.

The applicant opposed the costs, arguing they should be assessed later or denied.

The court found the motion was entirely avoidable and necessitated by the applicant's unreasonable refusal to consent to the adjournment.

The court awarded costs to the moving parties but reduced the amount to $6,000, finding the time spent on the motion materials excessive.

The moving parties sought costs of $11,097.22 on a partial indemnity basis after successfully obtaining an adjournment.

The respondent opposed the costs, arguing they should be assessed later or denied due to alleged delays.

The court found the motion was entirely avoidable and necessitated by the respondent's unreasonable refusal to consent to the adjournment.

Applying the principles of proportionality and reasonableness, the court fixed costs at $6,000 inclusive of disbursements and HST.

The moving parties brought a motion to adjourn the hearing of a judicial review application scheduled for February 2016.

The moving parties argued that their counsel was unavailable, they were not consulted on the date, and there was insufficient time to prepare a proper response, including conducting cross-examinations.

The court applied the factors for granting an adjournment and found that proceeding in February would deny the moving parties the opportunity to fairly make out their case.

The motion was granted and the hearing was adjourned to October 2016.