Marcy Segal

A pre-trial motion concerning the admissibility and use of will-say statements prepared by counsel for the applicant's witnesses.

The respondent sought an order permitting cross-examination of the witnesses on their will-says, or alternatively, requiring the statements to be translated and signed by the witnesses, or permitting cross-examination of the applicant on the preparation of the statements.

The court dismissed the motion, finding that the will-say statements were provided in compliance with the undertakings given, were sufficiently detailed and meaningful, and that the respondent was not prejudiced by their late service.

The court clarified the proper use of will-say statements as disclosure tools rather than evidence, and protected communications between the applicant and her counsel regarding the preparation of the statements under solicitor-client privilege.

The applicant sought equalization of net family property and spousal support following separation from the respondent's ex-husband, who passed away during the litigation.

The applicant claimed the respondent held a commercial investment property in trust for the deceased spouse and that she had a beneficial interest through unjust enrichment or fraudulent conveyance.

The court found the deceased had no ownership interest in the property, the trust agreement was a sham created by the deceased to mislead the applicant, and the applicant lacked standing to assert a trust claim against a third party for equalization purposes.

The court dismissed the equalization claim but awarded retroactive spousal support.

This high-conflict family law trial addressed decision-making, parenting time, child support, equalization, and spousal support following the separation of the parties.

The court considered the children's views, ordered joint decision-making, and established a flexible parenting schedule.

It imputed income to the mother for support calculations, determined an equalization payment owed by the father, and awarded compensatory and needs-based spousal support to the mother for a defined duration.

The decision also reconciled significant post-separation financial adjustments and arrears.

The applicant husband brought a motion for sanctions against the respondent wife for failing to comply with a consent disclosure order.

The husband sought a penalty of $250 per day until the breach was cured and an order prohibiting the wife from seeking further relief.

The court found the wife in breach but held it lacked jurisdiction under Rule 1(8) of the Family Law Rules to impose a monetary penalty absent a finding of contempt.

The court granted the wife an additional 30 days to provide the outstanding disclosure or demonstrate best efforts, failing which she would be prohibited from seeking further relief and the husband could move to strike her financial claims.

The applicant brought a summary judgment motion to enforce Final Minutes of Settlement, which the respondent refused to comply with.

The respondent did not file responding materials or appear at the motion.

The court found the Final Minutes to be a valid and binding domestic contract, enforceable as a court order, as all essential terms were agreed upon and formalities met.

The court also addressed the respondent's unreasonable conduct in the litigation history, leading to a costs award against her.

This case concerned the validity and enforceability of a separation agreement between former spouses, specifically regarding property division, financial disclosure, and parenting time for their son.

The applicant sought to set aside provisions related to property valuation, arguing that formal appraisals were intended and that the respondent failed to make proper financial disclosure.

The respondent opposed these claims but sought to set aside parenting time provisions that would shift the son's primary residence to the applicant upon turning 12, citing the son's stated wishes.

The court upheld the separation agreement as valid and enforceable in its entirety, dismissing both parties' primary claims to set aside specific provisions.

The applicant sought equalization of net family property, claiming the parties separated in 2017 and that the respondent's property was a matrimonial home.

The respondent argued they separated in December 2004, before she purchased the property.

Following a focused hearing to determine the date of separation, the court applied the factors from Al-Sajee v Tawfic and found that the parties separated in December 2004.

The court accepted the respondent's evidence that she allowed the applicant to stay at the property to foster a relationship with their children and convalesce after brain surgery, but that there was no marital relationship.

The respondent mother brought a motion seeking an order to temporarily relocate with the parties' two children to Montreal, Quebec, pending a final determination.

The applicant father opposed the motion.

The court found that the motion was premature, as the proceeding was in its earliest stages, no pleadings had been filed, and the evidentiary record was incomplete and highly conflicted.

The court held that the mother failed to meet the burden of proving that the temporary relocation was in the children's best interests and declined to abridge the 60-day notice requirement under the Divorce Act.

The motion for relocation was dismissed.

The respondent father brought a motion to change a temporary parenting order to increase his parenting time with the parties' child, who has Autism Spectrum Disorder.

The court found no material change in circumstances but determined the original order was time-limited, allowing for a review.

Applying the maximum contact principle, the court partially granted the motion, expanding the father's summer parenting time to four non-consecutive weeks and extending his alternate weekend parenting time to Monday mornings, while denying his request for additional mid-week overnights.

The appellant appealed his summary convictions for forcible confinement and sexual assault against his estranged wife.

He argued that the Crown failed to disclose the complainant's Sexual Assault Examination Kit (SAEK), that his trial counsel provided ineffective assistance, and that the trial judge erred in her credibility assessments.

The Superior Court of Justice allowed the appeal, finding that the undisclosed SAEK contained evidence that could have undermined the complainant's credibility and supported the appellant's defence.

The court also found that trial counsel was ineffective in proceeding without the SAEK and that the trial judge engaged in circular reasoning when assessing credibility.

A new trial was ordered.

The applicant mother brought a motion for an order under section 30 of the Children's Law Reform Act to appoint a qualified person to assess the needs of the parties' 11-year-old child.

The child had expressed a strong desire not to spend time with the applicant and experienced physical and emotional symptoms of stress regarding access visits.

The Office of the Children's Lawyer and a reunification therapist both provided evidence that the child was capable of forming her own views and that forcing a further assessment would be counterproductive and potentially harmful.

The court dismissed the motion, finding that there was already sufficient expert and clinical evidence available for trial and that a further assessment would not be in the child's best interests.

The parties, who previously shared week-about parenting of their four-year-old daughter, brought competing motions for temporary primary residence and school enrolment as the child was starting junior kindergarten.

The mother sought primary residence in Bowmanville, while the father sought primary residence in Scarborough.

Applying the best interests of the child factors under section 24 of the Children's Law Reform Act, the court granted temporary primary residence to the mother in Bowmanville, noting she had been the more directly involved parent.

The court ordered a parenting schedule for the father including alternate weekends, one mid-week overnight, and shared holidays to maintain his close relationship with the child.

The husband brought an urgent motion concerning the sale of the matrimonial home, with the wife filing a cross-motion addressing similar issues and her financial security.

The court ordered that a line of credit secured against the home be paid from the gross sale proceeds, and the remaining net proceeds be disbursed to the wife.

This decision was based on the husband's history of non-compliance with support orders, questionable financial conduct, and substantial support arrears, prioritizing the wife's financial stability.

The respondent (husband) brought an urgent motion seeking leave to address the upcoming sale of the parties' matrimonial home, scheduled for May 1, 2020, amidst the COVID-19 suspension of regular court operations.

Despite the husband's non-compliance with page limits for urgent motion materials, the court found the relief requested met the urgency requirements set out in the Chief Justice's Notice.

The court granted the urgent motion request and issued detailed procedural directions for a teleconference motion, including timelines for material delivery, page limits, and submission times, specifically restricting the motion to the matrimonial home sale issue.

The applicants sought certiorari to quash a Justice of the Peace's decision asserting jurisdiction over s. 810 Criminal Code peace bond applications based on alleged misconduct in Greece, and alternatively, for insufficient particularization of the location of the alleged misconduct.

The court dismissed the applications, holding that Canadian courts have jurisdiction to issue s. 810 peace bonds to prevent future harm in Canada, even if the underlying conduct occurred abroad, as the purpose is preventive, not punitive.

The court also found that the particulars provided were sufficient for fairness in a peace bond context, distinguishing it from criminal prosecutions.

The respondent, Fei Hung, brought a motion for partial summary judgment concerning the alleged theft of monies by the applicant, Robert Willis, and the ownership of her home, business, and contents of a safety deposit box.

She also sought to dismiss Willis's entire claim.

The court found the parties' cohabitation agreement to be valid and binding, dismissing Willis's claim to an ownership interest in the property and the Eglinton business.

However, issues regarding the ownership of the Jutland business and the exact amount of money in the jointly owned safety deposit box were deemed to require oral evidence and were reserved for a mini-trial.

Willis's claim for unjust enrichment related to the property was dismissed due to the binding agreement.

Ms. Hung brought a motion seeking to have Mr. Willis found in contempt, to produce documents pursuant to an earlier order, and to pay funds into court.

The contempt motion was withdrawn due to procedural issues, and the request for payment into court was dismissed as res judicata.

However, Mr. Willis was ordered to produce documents he had previously been ordered to provide.

Both parties sought costs for the motion.

The court found Ms. Hung was successful on the core issue of document production, which Mr. Willis had unreasonably resisted.

Mr. Willis's arguments were deemed without merit and unreasonable, and his conduct was considered contemptuous in a practical sense.

Ms. Hung was awarded costs of $5,650.00.

The respondent, Ms. Hung, brought a motion seeking an order to find the applicant, Mr. Willis, in contempt of a prior court order, for the delivery of his tax returns and Notices of Assessment, for his attendance at questioning, and for payment of funds into court.

The contempt aspect of the motion was withdrawn due to improper service.

The parties agreed on the questioning schedule.

The court ordered Mr. Willis to file his 2015, 2016, and 2017 tax returns with the CRA and provide them, along with Notices of Assessment, to Ms. Hung, rejecting his arguments that a subsequent order or non-filing with the CRA relieved him of this duty.

The request for payment into court was dismissed as res judicata, having been previously addressed by another order.

Costs were reserved for written submissions.

The mother appealed a trial judge's decision awarding sole custody of two children to their father.

The children had resided with the father since 2010 when the Children's Aid Society placed them with him, and the mother had previously agreed to this arrangement in 2012.

At trial, the Office of the Children's Lawyer supported continued residence with the father.

The mother sought to introduce hearsay evidence of statements made by the children and a surreptitious recording, arguing the trial judge erred in excluding this evidence and in awarding sole custody based on the father's alleged inattention to medical needs.

The Court of Appeal upheld the trial judge's decision, finding no error in the exclusion of the hearsay evidence or the recording, and finding the trial judge's custody determination was thorough, sensitive, and owed deference.

The appeal was dismissed and leave to appeal costs was refused.

In a first-degree murder trial, the Crown sought to introduce ante-mortem statements made by the deceased to demonstrate his state of mind and the accused's motive to kill.

The defence objected to the viva voce evidence of five witnesses and a Facebook thread, arguing they failed the test of necessity and were not material to motive.

The court ruled the statements admissible, finding they fell under the state of mind exception to the hearsay rule and were not introduced for the truth of their contents.

The court also held the statements were material to establishing motive and their probative value outweighed any prejudicial effect, subject to minor redactions.