Martin S. James

On a motion for payment out of funds paid into court representing sale proceeds of a cottage interest, the court held that a transfer into joint tenancy with the movant daughter contravened the Fraudulent Conveyances Act because it hindered existing child support creditors.

Applying the badges of fraud analysis in a non-arm's length transfer for no consideration, the court found the presumption of fraudulent intent was not rebutted.

The movant was therefore not entitled to the funds as surviving joint tenant, though her funeral expense claim was recognized as an ordinary creditor claim without priority.

The funds and accrued interest, after priority payment of one creditor's full indemnity costs, were ordered distributed pro rata among the three accepted creditors.

In an interjurisdictional spousal support variation proceeding arising from a provisional order made in Nova Scotia, the court found the record insufficient to determine the parties' present rights and obligations.

The court directed that extensive additional financial disclosure be obtained from the applicant under s. 33(2) of the Interjurisdictional Support Orders Act, 2002, including income breakdowns, investment withdrawals, pension-related information, delay explanation, a fresh financial statement, equalization status, and an updated arrears statement.

Pending receipt of that information, the court exercised its authority under s. 33(3) to make a temporary support variation order.

Temporary spousal support was fixed at $900 per month commencing May 1, 2015, and the matter was adjourned.

The applicants sought a permanent injunction in a long-running neighbour dispute concerning interference with a right of way and lands acquired through prescriptive rights.

The court found that the applicants had acquired rights to the disputed portion formerly enclosed by a hedge, and that the responding neighbour had unlawfully removed the hedge and engaged in persistent harassing conduct.

A permanent injunction was granted restraining interference with the applicants' use and enjoyment of the disputed lands and further restraining harassment or annoyance.

The court also awarded substantial indemnity costs after finding self-help conduct, persistent denial of entitlement, and sanctionable behaviour that increased the applicants' legal costs.

Following her successful defence of a motion to change an existing spousal support order, the respondent on the motion sought costs of $22,000.

The moving party argued for a reduced award of $12,000, citing the respondent's failure to timely disclose changes in her education plans and the tax deductibility of her costs.

The court rejected the tax deductibility argument but considered the delayed disclosure.

Noting the respondent's successful offer to settle, the court awarded her costs of $17,500 plus HST.

The applicant sought to terminate a testamentary trust created by his grandfather, remove his uncle as estate trustee, compel a passing of accounts, and obtain a declaration of his right to use the estate's farm property.

The court found that the applicant held only a contingent interest in the trust fund and a vested future interest in the farm property, which did not grant him a present right to possession or use.

The court dismissed the requests to terminate the trust, remove the trustee, and compel a formal passing of accounts, but ordered the respondent to provide the applicant with copies of the existing accounting records.

On a motion for judgment against a defendant noted in default in an estate dispute, the plaintiff sought liquidated damages for his share of estate funds, a portion of estate-funded legal costs, and trustee remuneration.

The court held that deemed admissions in the statement of claim supported judgment only for the specific funds distributed to the defaulting defendant that had been set aside for the plaintiff.

The pleaded facts did not establish entitlement to recover alleged estate mismanagement losses, legal costs, or trustee compensation on the motion.

Judgment was granted only in part, with leave to pursue the remaining claims at trial.

In a post-verdict sentencing ruling in a sexual assault prosecution, the accused sought a stay of one count and orders for a psychiatric assessment and sexual behaviour testing.

The court held that the impugned count, as presented to the jury on consent, fell within the statutory authorization for adding a charge with the accused's consent and refused the stay.

The court further found there was an adequate basis to order a psychiatric report concerning the accused's mental health and to direct sexual behaviour testing, including phallometric testing, as relevant to the determination of a fit sentence and appropriate ancillary orders.

The stay request was dismissed, and both assessment requests were granted.

The appellant appealed a conviction for failing to stop a vehicle as soon as reasonable while being pursued by a peace officer in order to evade police, contrary to s. 249.1 of the Criminal Code.

He argued the initial roadside detention was unconstitutional, that the police were not in “pursuit” within the meaning of the offence, that derivative evidence should have been excluded, and that the trial judge misapprehended the elements of the offence.

The court held the traffic stop had a valid dual purpose, found no breaches of ss. 9, 10(a), or 10(b) of the Charter, and concluded that “pursuit” should be given its ordinary meaning rather than a police policy definition.

The evidence supported the finding that the appellant knew police were pursuing him and drove away to evade them.

The conviction appeal was dismissed.

In a family law support proceeding under the Interjurisdictional Support Orders Act, the moving party sought credits against child support, contribution to dental expenses incurred during the children's visit in the United States, and an advance declaration terminating support at age 18.

The court dismissed all substantive requests, holding that income disclosure was insufficient to support a credit, the dental claim lacked adequate evidence of consultation and proper proportional contribution analysis, and child support does not automatically end at the age of majority where dependency may continue through post-secondary education.

The court ordered the moving party to provide income tax returns and assessment materials for 2011 through 2013 within 60 days.

The court declined to address later-filed material concerning a child's residence because that issue was not properly before it.

On a motion to change spousal support under the Divorce Act, the moving party argued that the recipient spouse's failure to complete a master's degree, decision to pursue teacher's college instead, and alleged non-disclosure before settlement amounted to a material change in circumstances.

The court held that, even under the parties' agreement lowering the foreseeability component of the material change threshold, the moving party failed to establish a material change warranting variation.

In the context of a long-term marriage and an existing review clause, the recipient spouse remained entitled to flexibility and time to work toward self-sufficiency.

The court also refused to look behind the original order based on alleged non-disclosure during settlement negotiations.

This was a costs endorsement following a family law trial in which both parties were self-represented.

The court noted that the trial result was mixed, although the final outcome required a substantial payment by the applicant, and that costs are discretionary under section 24 of the Family Law Rules.

The court held that self-representation does not bar a costs claim, but not all disbursements or out-of-pocket expenses are recoverable.

Exercising its discretion on the facts, the court awarded no costs to either party.

This costs endorsement followed a motion by the applicant seeking judgment to enforce a settlement contract in a family law proceeding.

Although the applicant succeeded on the disclosure issue, the court ordered a trial of an issue on whether the settlement was valid and enforceable.

The court held that neither side had yet achieved a result justifying an immediate costs award and emphasized the moving party had acted reasonably in bringing the motion on the basis of signed minutes of settlement and an advice certificate.

Costs of the motion were reserved until after trial.

The applicant, charged with drug production offences, sought leave to cross-examine the affiant on an information to obtain in advance of a s. 8 Charter challenge to a search warrant.

The court applied the governing test for leave to cross-examine an affiant and held that the moving party must show a reasonable likelihood that the proposed questioning will assist in determining a material issue.

Cross-examination was refused insofar as it would probe confidential informant details that risked identification and would not materially assist given corroboration already obtained.

Leave was granted on a limited basis regarding discrepancies between occurrence reports and the affidavit, and regarding the nature of the roadside vantage point from which the affiant said marijuana plants were observed.

The applicant sought a stay of a sexual assault charge on the basis of unreasonable delay under s. 11(b) of the Charter following a military investigation, court martial process, and eventual transfer to civilian authorities.

The court found excessive delay caused by prosecutorial inaction, administrative neglect, and failures of communication within the military justice system, including delay in referral and service.

The applicant established actual prejudice, including employment, social, and mental health consequences, and the court also recognized increasing inferred prejudice over time.

Balancing the relevant delay factors, the court concluded the delay was unreasonable and granted a stay under s. 24(1).

The applicant brought a motion seeking a finding of contempt against the respondent for removing the parties’ child to Australia and remaining there for an extended period contrary to the spirit and effect of a prior custody order.

Although the original judgment permitted occasional extended trips to Australia, the court found that the respondent’s prolonged stay and failure to provide return information constituted deliberate and wilful disobedience.

The court concluded that the elements of contempt were proven beyond a reasonable doubt.

As a remedial measure, the court granted the applicant compensatory access time and addressed travel concerns, while emphasizing that family law contempt remedies should focus on promoting compliance rather than punishment.

Costs of $7,000 were awarded to the applicant, recoverable as a credit against child support through the Family Responsibility Office.

Sentencing decision for an offender who pleaded guilty to unlawful confinement and break and enter to a dwelling house with intent to commit an indictable offence arising from a planned home invasion of an elderly victim.

The offender and accomplices forcibly entered the residence at night, bound the victim, threatened her with a machete, and stole cash and valuables.

The court considered aggravating factors including the vulnerability of the elderly victim, the planned nature of the offence, threats of violence, and the serious psychological impact described in the victim impact statement.

Mitigating factors included the offender’s youth, limited criminal record, guilty plea, demonstrated rehabilitation through a residential addiction treatment program, and sustained sobriety.

Applying sentencing principles emphasizing denunciation and deterrence while recognizing rehabilitation, the court imposed a penitentiary sentence reduced to account for pre‑trial custody and partial credit for time spent in a structured treatment facility.

A costs endorsement following a motion by a former solicitor seeking a charging order over potential proceeds in litigation to secure payment of outstanding legal fees.

The motion for the charging order had been dismissed because no identifiable fund or asset attributable to the solicitor’s efforts had been established.

One defendant sought partial indemnity costs against the solicitor for opposing the charging order.

The court emphasized that costs orders against solicitors are unusual and generally reserved for cases involving improper conduct.

Exercising discretion, the court declined to order the solicitor to pay costs to the defendants.

Following trial reasons awarding the plaintiff sixteen months’ notice damages for wrongful dismissal, the court considered post‑trial submissions regarding whether “other commissions” should be included in the damages calculation for the notice period.

The original decision calculated damages based on commissions the plaintiff would have earned from October 2009 to January 2011.

The judge noted that the evidentiary record did not recall proof of additional commissions payable during that period.

The court indicated willingness to receive further submissions if evidence existed establishing entitlement to additional commissions within the notice period.

The applicant brought a motion in the Superior Court of Justice for an order respecting the sale of the matrimonial home within a broader family law proceeding seeking divorce, support, and property relief.

During the hearing, the respondent raised a pending motion to change a prior custody and support order issued by the Ontario Court of Justice.

The court considered whether the earlier proceeding had been transferred to the Superior Court and which court had jurisdiction to vary the existing order.

The court held that the Superior Court application constituted a new proceeding rather than a transfer of the Ontario Court of Justice matter.

Because the original custody and support order was issued by the Ontario Court of Justice in a non‑unified family court jurisdiction, any motion to vary that order must be brought in that court.

Following a prior endorsement denying a request for temporary relief from guideline child support based on hardship, the responding party's counsel advised the court of an error in the judge’s reference to the responding party’s 2013 income tax liability.

The corrected amount was substantially higher than previously stated.

The court considered whether the error justified revisiting the earlier refusal of hardship relief.

The judge concluded that the corrected tax liability did not alter the analysis and declined to revisit the denial of the hardship claim.