Marvin Kurz

The applicants brought a motion for leave to appeal an order dated September 12, 2022.

The Divisional Court denied the motion for leave to appeal and awarded costs to the respondent fixed at $5,000 all inclusive.

The moving parties sought leave to appeal an interlocutory order requiring the production of a witness statement.

The Divisional Court granted the motion for leave to appeal, with costs of the motion reserved to the panel hearing the appeal and fixed at $3,000.

The moving parties brought a motion for leave to appeal the order of MacNeil J. dated August 19, 2022.

The Divisional Court dismissed the motion for leave to appeal without costs.

This endorsement determined the lump sum child and spousal support payable by the Respondent to the Applicant, and fixed costs.

The court ordered the Respondent to pay lump sum child support of $197,139 and spousal support of $44,411, totaling $241,550, based on the low end of the SSAG range given the duration of support.

The Applicant sought full indemnity costs, but the court awarded enhanced costs of $50,000, all inclusive, due to the Respondent's unreasonable conduct, including failure to provide disclosure and non-participation, which significantly increased the Applicant's legal costs.

The court found the Respondent's conduct unreasonable but not amounting to bad faith.

In an uncontested family law trial, the applicant sought equalization of net family properties, child support, and spousal support.

The respondent, who suffered from untreated alcoholism, had been terminated from his employment due to unexplained absences and refused to participate in the proceedings.

The court ordered an equalization payment of $220,150.70 but declined to order an unequal division of property, finding the high threshold of unconscionability was not met.

The court imputed an income of $127,307 to the respondent, finding his termination resulted from intentional unemployment rather than a medical inability to work.

Given the respondent's failure to pay support since separation and threats to avoid his obligations, the court ordered that both child and spousal support be paid as a lump sum, secured by a charge on the matrimonial home.

Two related applications were brought to determine the priority and validity of $283,508.64 in disputed fees claimed by the first mortgagees following a power of sale.

The second mortgagee argued the fees were not part of the first mortgage and violated s. 8(1) of the Interest Act.

The court held that the forbearance agreement containing the fees did not form part of the first mortgage and could not be enforced in priority to the second mortgage.

Furthermore, the court found the default and prepayment fees constituted unenforceable penalties under s. 8(1) of the Interest Act, meaning they could not be claimed against the mortgagor or guarantor either.

The applicant mother brought a motion for primary care of the parties' three children following their separation and the impending sale of the matrimonial home.

The respondent father sought a 2-2-3 shared parenting arrangement.

The court found that the father had an unacknowledged alcohol abuse problem that contributed significantly to parental conflict and posed a risk to the children.

Applying the best interests of the child test under the Divorce Act, the court granted primary care to the mother and ordered specified parenting time for the father without overnights, conditional on him not consuming alcohol before or during his parenting time.

On a family law interim motion, the court refused an adjournment and proceeded to determine temporary support despite an outstanding cross-motion concerning parenting and other relief.

In assessing income for support purposes, the court rejected a substantially reduced revised income report prepared for the respondent and adopted a compromise annual income figure of $525,000.

The court also imputed $30,000 of annual income to the applicant, on a without prejudice basis, having regard to her prolonged absence from the workforce, recent school-entry of the youngest child, and evidence bearing on work capacity.

Interim child support, spousal support, and section 7 contributions were ordered, with the respondent also required to share carrying costs of the matrimonial home pending sale.

The applicant sought a review of a detention order under s. 520(1) of the Criminal Code.

He faced numerous charges including human trafficking, procuring, and breaching court orders.

The court found no errors of law in the justice of the peace's initial detention order.

Although a material change in circumstances warranted a de novo review, the court concluded the applicant failed to meet his reverse onus.

Detention was deemed necessary on the secondary ground due to a substantial likelihood of reoffending, given his history of breaching orders and lack of credibility, and on the tertiary ground due to the gravity of the offences and strength of the Crown's case.

The applicant father brought a motion seeking equal shared parenting and a corresponding reduction in child support under section 9 of the Child Support Guidelines.

The respondent mother opposed, seeking to maintain the status quo of her primary care.

The court applied the newly amended Divorce Act and the Supreme Court's decision in Barendregt, noting the 'maximum contact principle' has been replaced by the 'parenting time factor' which is strictly subject to the child's best interests.

Finding the father's request was partly financially motivated and that the status quo favoured the mother, the court ordered the children to remain in the mother's primary care.

The father was ordered to pay full table child support and arrears.

The applicant mother brought an urgent motion for the immediate return of the parties' 12-year-old child after the respondent father unilaterally withheld the child following a summer visit.

The father had also commenced proceedings in Belleville.

The court found that the child's habitual residence was in Halton, stayed the Belleville proceedings, and ordered the immediate return of the child to the mother's care, noting the father's inappropriate conduct in alienating the child and making unilateral parenting decisions.

The applicant sought full indemnity costs of $35,747.55 following cross-motions regarding parenting arrangements, mobility, and daycare.

The applicant argued entitlement to enhanced costs because he served three offers to settle that were as favourable or less favourable than the final order, pursuant to Rule 18(14) of the Family Law Rules.

The respondent argued no costs should be ordered as she litigated in good faith.

The court found the applicant was entitled to full indemnity costs for the issues of parenting time and mobility from the date of his March 1, 2022 offers.

Considering proportionality and the reasonable expectations of the parties, the court fixed costs payable by the respondent to the applicant at $25,000.

The applicants, a group of cottage owners, sought judicial review of a work permit issued by the Ministry of Natural Resources and Forestry (MNRF) to the respondents for the construction of a dock and walkway on a property that was the site of a former mine.

The applicants argued the decision was unreasonable and breached their procedural fairness rights.

The Divisional Court dismissed the application, finding that the MNRF's decision was reasonable as it relied on expert environmental assessments from other ministries and attached appropriate mitigation conditions.

The court also held that the MNRF met its procedural fairness obligations, noting that formal reasons were not required for a building permit application.

The Transportation Safety Board of Canada (TSB) applied for judicial review of a Coroner's preliminary ruling in an inquest into a fatal helicopter crash.

The Coroner had ordered the disclosure of certain aggregate and specific information about witness statements obtained during the TSB's investigation.

The TSB argued this information was protected by the statutory privilege in s. 30 of the Canadian Transportation Accident Investigation and Safety Board Act (CTSA).

The Divisional Court granted the application, finding the Coroner's decision unreasonable as it conflicted with the broad statutory privilege and the mandatory procedure for disclosure under s. 30(5) of the CTSA.

The applicant mother brought a motion for an interim order permitting her to relocate with the parties' two children from Oakville to Sarnia.

The respondent father opposed the move, arguing it was premature and would negatively impact the children, particularly one child who has Autism Spectrum Disorder, ADHD, and struggles with transitions.

The court dismissed the motion, finding it premature as more information was required regarding the children's best interests, including a pending decision on the involvement of the Office of the Children's Lawyer.

In a construction lien action, the defendant homeowners moved to amend their statement of defence and counterclaim and to substitute the affidavit evidence of a new expert witness for one who died after preparing his report.

The plaintiff contractor opposed the motion, arguing that the amendments would cause prejudice and delay the summary nature of the proceedings.

The court granted the motion, finding that the plaintiff failed to demonstrate non-compensable prejudice and that it was in the interests of justice to allow the defendants to rely on a live expert witness and fully articulate their claims regarding newly discovered deficiencies.

The plaintiff was awarded $10,000 in costs thrown away.

The applicant bank sought to enforce a default judgment by applying for a reference and judicial sale of the respondent's real property under the Rules of Civil Procedure, rather than proceeding with a standard sheriff's sale under the Execution Act.

The applicant argued that judicial sales are generally superior and more cost-effective, relying on an affidavit from its counsel's partner.

The court dismissed the application, reaffirming its previous decision in Wong that a sheriff's sale is the statutorily prescribed method for enforcing a writ of seizure and sale against real property, and a judicial sale should only be ordered in special circumstances, which were not present here.

The applicant wife sought interim child and spousal support.

The court determined the appropriate formula for child support for a child attending university away from home, setting it at the mid-point between the full table amount and the summer formula.

The court also ordered spousal support at the high end of the Spousal Support Advisory Guidelines (SSAG) range due to the long-term marriage, the wife's post-separation financial disadvantage, and the husband's failure to pay proper support or provide full disclosure.

Arrears for both child and spousal support were calculated and ordered.

The plaintiff bank brought a motion for summary judgment to collect the $69,090.92 balance of an unpaid loan used by the defendant to purchase securities.

The defendant counterclaimed, alleging the bank was responsible for the fraudulent actions of her investment advisor and breached a fiduciary duty.

The court granted summary judgment for the bank and dismissed the counterclaim, finding no evidence that the bank was responsible for the advisor's actions and affirming that a standard debtor-creditor relationship does not create a fiduciary duty.

The applicant hotel suffered a fire that caused significant damage, leading to its closure and the layoff of its employees.

The respondent union grieved the employer's failure to pay termination pay.

The arbitrator found the employees were entitled to termination pay, rejecting the employer's argument that the employment contracts were frustrated under s. 2(1.4) of Ontario Regulation 288/01, because the employer always intended to reopen the hotel.

On judicial review, the Divisional Court held that the arbitrator reasonably applied the test for frustration of contract and reasonably concluded that the temporary break in operations did not render the contracts radically different.

The application for judicial review was dismissed.