Malcolm Bennett

The respondent brought a motion to stay proceedings, arguing that a dispute resolution clause in the parties' separation agreement mandated binding arbitration for parenting time disputes under the Arbitration Act, 1991.

The applicant opposed, contending the clause did not meet the mandatory formalities for "secondary arbitration agreements" as required by Ontario Regulation 134/07.

The court found that while the clause intended to provide for secondary arbitration, it failed to include the necessary provisions stipulated by the regulation.

Consequently, the clause did not constitute an enforceable arbitration agreement under the Arbitration Act, and the court dismissed the respondent's motion to stay the proceedings.

Aviva Canada Inc. brought a motion for directions regarding the timing of its answers to undertakings, seeking to defer disclosure until the defendants, Hubio Solutions Inc. and Ingenie (Canada) Inc., provided their answers to questions ordered answered.

Aviva alleged that Hubio had taken an obstructionist approach during discovery and that there was a significant risk of Hubio tailoring its evidence if Aviva disclosed first.

The Master found a significant overlap in the information sought by both parties concerning pre-agreement representations and accepted the risk of tailoring.

The Master also criticized Hubio's conduct during discovery and its delay in contacting former employees.

The motion was granted in part, allowing Aviva to defer answers to undertakings related to pre-agreement meetings and discussions until Hubio provided its ordered answers, with a simultaneous exchange date set.

Other undertakings were to be answered forthwith.

The applicant mother sought to relocate with the nine-year-old child of the marriage from Simcoe to Exeter, Ontario, to live with her fiancé and be closer to her extended family.

The child has type 1 diabetes and struggles with reading and writing.

The parties had been sharing parenting on a week-about basis.

The court applied the Gordon v. Goertz framework and found that the proposed move would require excessive driving, disrupting the child's life and the existing shared parenting arrangement.

The court concluded that the move was primarily for the mother's benefit and not in the child's best interests, dismissing the application.

The accused, Torcaso and Maione, were found guilty by a jury of offences stemming from a "home invasion" break and enter and assault.

Torcaso broke down the door and assaulted the victim, Mr. Gridzak, causing minor injuries.

Maione entered subsequently, was seen with a knife, and backed another individual into the kitchen, though he later attempted to calm the situation.

The Crown sought custodial sentences of 6-9 months for Torcaso and 4-6 months for Maione.

The defence sought suspended sentences.

The court found the incident constituted a "home invasion" under s. 348.1 of the Criminal Code, an aggravating factor, but distinguished it from "surprise" home invasions that typically attract penitentiary terms, noting the victims were aware someone was coming.

Balancing rehabilitation for youthful offenders with general deterrence and denunciation, the court imposed custodial sentences.

Torcaso was sentenced to six months in jail followed by 2 years probation, plus DNA and s. 109 orders.

Maione was sentenced to 60 days in jail, to be served intermittently, followed by 24 months probation, plus DNA and s. 109 orders.

Following a guilty verdict, the trial judge opened a letter purportedly from a juror.

An inquiry was held where the juror denied writing the letter.

The defence subsequently applied for a mistrial or a stay of proceedings based on a reasonable apprehension of bias, arguing that the juror's subsequent contact with the Crown tainted the process.

The trial judge dismissed the applications, finding that he was functus officio under the rule in R. v. Burke, which dictates that only an appellate court has jurisdiction to order a new trial for alleged juror bias requiring reconsideration of the verdict.

The judge also held that the Burke rule does not violate section 7 of the Charter and declined to continue the inquiry due to jury secrecy concerns.

During a trial for break and enter and assault, the court ruled on whether certain defences could be left with the jury.

The court permitted the third-party suspect defence for one accused, finding sufficient evidence connecting another individual to the crime.

However, the court refused to leave the defences of self-defence and duress for the co-accused, concluding there was no air of reality to the claim that he drew a knife from the victim's kitchen in response to a threat.

The Crown sought leave to withdraw charges against four defendants (three members of Batchewana First Nation and one self-identified Métis individual) for unlawfully harvesting forest resources in Crown forests without proper licenses, contrary to the Crown Forest Sustainability Act.

The defendants opposed the withdrawal, arguing the prosecution was a vehicle to establish aboriginal and treaty rights.

The court granted the Crown leave to withdraw the charges, finding it was in the public interest to resolve such complex aboriginal issues outside the criminal forum.

However, the court awarded substantial costs against the Crown for its delay in withdrawing the charges and for failing to reassess its position when it received the defendants' expert report in May 2014.

The court awarded $90,000 to Clinton Robinson and $300,000 to the three other defendants.

The applicant mother sought leave to appeal a temporary order that granted the respondent father overnight parenting time on Tuesdays.

The applicant argued the motions judge erred in her use of a custody and access assessment report.

The court dismissed the motion, finding that the motions judge properly considered the assessment report under the Children's Law Reform Act and that the applicant failed to meet the test for leave to appeal.

Costs were awarded to the respondent on a substantial indemnity basis.

The applicant mother brought a motion for interim custody and an interim parenting schedule, while the respondent father brought a cross-motion seeking joint custody and a flexible schedule based on his work travel.

The court emphasized the children's need for stability and predictability, finding that the father's proposal sacrificed certainty for his employment schedule.

The court ordered the temporary parenting schedule proposed by the mother, noting that the father's employment should be flexible to accommodate his parental responsibilities.

This endorsement addresses the costs of an appeal, which was dismissed, concerning a mobility issue where the respondent was permitted to relocate with the child.

The respondent sought full indemnity costs of over $40,000, while the appellant argued for no costs or $7,500.

The court applied the Family Law Rules, particularly r. 24(1) and 24(11), finding that the appellant's pursuit of the appeal was not unreasonable.

The court noted the respondent's failure to make an offer to settle, which precluded full indemnity costs under r. 18(14), and found the time spent by the respondent's counsel to be excessive, disallowing costs for junior counsel's attendance.

The court fixed costs at $17,500 inclusive, to be set off against any remaining equalization payment.

The accused pleaded guilty to making available child pornography contrary to section 163.1(3) of the Criminal Code.

The sentencing hearing spanned multiple dates over three years and involved contested applications by the accused seeking a stay of proceedings.

The accused challenged the Crown's election to proceed by indictment and its pursuit of a sentence exceeding the mandatory minimum, arguing abuse of process and Charter violations.

The court dismissed all applications for stay, finding no Charter breaches or abuse of process.

The court imposed a sentence of 12 months imprisonment (the mandatory minimum) with credit for time served at 1.5 days per day, followed by 15 months probation, and mandatory ancillary orders including DNA, forfeiture, and SOIRA registration.

Following the dismissal of almost all interim relief sought by both parties in a high-conflict family law dispute, the court determined costs.

Although there was divided success, the court found the respondent was entitled to some costs because the applicant's claims for a restraining order and relocation occupied a significant portion of the materials and argument.

The applicant was ordered to pay the respondent $3,500 in costs.

The appellant father appealed a family arbitration award that permitted the respondent mother to relocate with their child to Rochester, Minnesota, to accept a surgical oncology position at the Mayo Clinic.

The appellant argued the arbitrator misapprehended evidence regarding his ability to work in the United States, the mother's employment prospects in Ontario, and failed to give sufficient weight to the maximum contact principle.

The Superior Court of Justice applied the standard of appellate review, finding no palpable and overriding error or error of law in the arbitrator's decision.

The court held that the arbitrator properly considered the child's best interests, the maximum contact principle, and the evidence of immigration experts.

The appeal was dismissed and the arbitration award was confirmed.

The applicant and respondent both brought motions for interim relief in a high-conflict family law proceeding.

The applicant sought to relocate with the children to Blue Mountain, exclusive possession of a chalet, and a restraining order based on allegations of stalking and electronic spying.

The respondent sought to sever the divorce from corollary issues, a restraining order, and an updated custody assessment.

The court dismissed all substantive motions, finding no compelling reason to vary the interim parenting status quo, insufficient evidence to support the restraining orders, and potential prejudice to the applicant regarding medical benefits if the divorce were severed.

In a high-conflict family law proceeding, the court determined interim parenting and support issues.

The court declined to award 'custody' to either parent, instead ordering a detailed shared parenting schedule to minimize conflict and maintain stability for the children.

The court imputed an income of $364,188 to the respondent business owner and ordered him to pay $4,454 monthly in child support and $7,575 monthly in spousal support.

Requests for funding to repair the matrimonial home and for its immediate sale were denied or adjourned.

The Crown brought an application during a sentencing hearing seeking access to the raw psychological data and assessment materials prepared by Dr. Paul Valliant, a defence expert witness.

The accused opposed the application, arguing the Crown should serve a subpoena duces tecum directly on the witness.

The court held that while the Crown is entitled to access the foundational materials underlying expert opinions to enable effective cross-examination, the defence should serve as the intermediary to obtain and produce these materials to the Crown, rather than the Crown serving a subpoena directly on the defence witness.

The accused pleaded guilty to making available child pornography contrary to s. 163.1(3) of the Criminal Code.

During the sentencing hearing, the defence sought to qualify a forensic clinical psychologist, Dr. P. Valliant, as an expert witness to provide opinion evidence on the accused's psychological assessment and risk to re-offend.

The Crown objected, citing concerns about potential Charter arguments and the timing of the expert evidence.

The court conducted a voir dire to determine the expert's qualification.

The judge ruled that Dr. Valliant satisfied the requirements for expert qualification and was admissible to provide opinion evidence on psychological assessment and risk assessment in the sentencing context.

The moving party sought leave to appeal the dismissal of a Rule 21 motion that had attempted to strike the plaintiff’s claim against a First Nation on the basis of an expired limitation period and lack of a reasonable cause of action.

The proposed appeal raised the issue of whether provincial limitation statutes bar claims against a First Nation for breach of fiduciary duty where the claim involves on-reserve property and the relationship between band and member.

The court acknowledged that the law in this area contains ambiguity and that the issue is of general importance.

However, the court held that the motions judge had refused to strike the claim primarily because the evidentiary record was insufficient at the pleadings stage to determine the applicability of limitation statutes.

Leave to appeal was refused because the issues should be determined on a fuller factual record rather than in an interlocutory appeal.

In a family law proceeding, the respondent brought a motion seeking to dismiss or stay the applicant’s motion to change a separation agreement on the basis that the applicant had failed to pay approximately $42,000 in spousal support arrears.

The court considered whether such a motion could proceed before a case conference under the Family Law Rules.

The court held that a request to stay or dismiss a motion to change due to non‑payment of support arrears engages substantive rights and therefore cannot be heard prior to a case conference unless an exception applies.

The respondent failed to demonstrate urgency or hardship sufficient to bypass the conference requirement.

The motion was therefore adjourned to be addressed after the scheduled case conference.

The appellant appealed an order varying the respondent's child support obligations.

The respondent had suffered a catastrophic injury, constituting a material change in circumstances.

The motions judge retroactively recalculated child support arrears based on actual income rather than the previously imputed income.

The appellant argued the motions judge lacked jurisdiction to retroactively recalculate arrears under s. 37(2.1) of the Family Law Act.

The Court of Appeal dismissed the appeal, holding that s. 37(2.1)(a) provides the court with broad discretion to vary an original order retroactively when a change in circumstances is established.