Marvin Kurz

The applicant wife brought a motion for interim child and spousal support, including retroactive support dating back to the parties' 2019 separation.

The husband, who had been the primary earner during their 25-year marriage, paid no support for over two years after separation despite earning substantial income.

The court found the husband engaged in blameworthy conduct by failing to pay support and ordered interim child and spousal support retroactive to January 1, 2021.

Issues of intentional underemployment and exact quantum were deferred to trial or further submissions.

This is a costs endorsement following the dismissal of the Applicant's motion to change a consent order regarding child and spousal support.

The Respondent, Kenneth Forbes, sought full indemnity costs.

The court found the Applicant, Lisa Forbes, engaged in unreasonable litigation conduct, including making false allegations and pursuing an ill-conceived claim under Family Law Rule 1(8).

Despite the Respondent being self-represented, he received significant assistance from counsel, and the court found his costs claim reasonable.

The court awarded costs of $50,000 to the Respondent, inclusive of disbursements and HST, payable within 30 days, rejecting the Applicant's arguments for reduced costs based on her financial circumstances.

The plaintiff alleged it was defrauded into depositing funds into a TD Bank account and commenced an action against the bank and a 'John Doe' defendant.

The plaintiff brought a motion seeking an order requiring the bank to disclose the identity of the account holder to advance the litigation.

The court granted the motion, finding that the disclosure was in the interests of justice and could be ordered by analogy to the discovery rules under the Rules of Civil Procedure.

The applicant father sought primary care and sole decision-making for his 11-year-old daughter following the mother's death from brain cancer.

The maternal grandparents, with whom the child had primarily resided for most of her life, opposed this, seeking to maintain the status quo.

The court, applying the "best interests of the child" principle under the Divorce Act, rejected the father's claim of a "right of joint custodial survivorship" and found that the child's need for stability and continuity favored remaining in the grandparents' primary care.

The court granted interim primary care and final decision-making to the grandparents, while establishing a parenting schedule for the father and ordering mediation.

The applicant father brought an interim motion for partition and sale of the jointly owned matrimonial home.

The respondent mother opposed the motion, seeking to defer the issue to trial where she intends to request a time-limited order for exclusive possession.

The mother also asserted substantial claims for retroactive support and equalization payments, which could be satisfied by the father's interest in the home.

The court dismissed the father's motion, finding the immediate sale premature.

The decision emphasized the attenuated principles for interim partition and sale of a matrimonial home, requiring a holistic review that considers the best interests of the children and potential prejudice to the responding party's legitimate family law claims, such as exclusive possession or equalization.

The court noted the parties' prior promise to the children to allow them to remain in the home, the imminence of trial, and the lack of clear practical advantage to the father in an immediate sale, as proceeds would likely be held in trust.

This endorsement from a settlement conference in a high-conflict family law case primarily addresses parenting issues.

The court vacated the respondent father's scheduled long motion concerning parenting arrangements, citing his non-compliance with procedural rules (failure to serve notice of motion and file a timetable agreement) and the principle of proportionality.

The court emphasized that bringing multiple motions on the same issue in quick succession, especially after a prior interim order, is contrary to the Family Law Rules and the access to justice principles articulated in Hryniak v. Mauldin.

The judge also noted the high bar for varying interim parenting orders and the application of issue estoppel.

The case was reluctantly placed on the fall 2022 trial blitz, and any future motions require leave of the court.

Directions were also given for questioning and financial disclosure related to a jointly owned cottage.

This endorsement addresses the applicant father's motion to change child support, seeking retrospective and prospective support for the parties' child.

The father sought to impute income to the respondent mother at minimum wage after the shared parenting arrangement ended and the child came into his primary care.

The mother opposed, citing low income due to pandemic-related layoff, and sought a set-off for alleged past underpayments by the father.

The court found the father had underpaid support by $3,070 due to income increases and a change in Child Support Guidelines tables.

However, the court also found the father had overpaid by $1,831.69 after the parenting change.

The court imputed income of $30,000 per year to the mother from January 1, 2021, finding her intentionally underemployed despite her reasons for not seeking alternative work.

The mother was ordered to pay net retroactive and retrospective child support arrears of $6,221.21, along with ongoing monthly table support and a portion of special expenses.

No costs were awarded due to mixed success and the father's lack of timely disclosure.

The applicant brought a motion to change a 2017 consent order, seeking the retroactive reinstatement of indefinite spousal support.

She alleged the respondent breached the order by failing to reconcile her with their estranged children during court-ordered counselling sessions.

The court found that the respondent made no representations promising reconciliation and had complied with the order by attending the sessions and offering parenting updates.

The court held that the applicant herself had refused to attend further meetings, and therefore the respondent did not breach the letter or spirit of the order.

The motion to change was dismissed.

The accused, D.M., was charged with historical sexual exploitation and sexual assault of his 16-year-old niece.

The court applied the principles of R. v. W.(D.) regarding credibility and reasonable doubt.

The complainant's evidence was found credible and reliable despite defence challenges.

The court found the accused guilty of sexual assault, concluding that the Crown proved intentional application of force, lack of consent, knowledge of non-consent, and sexual nature of the act beyond a reasonable doubt.

However, the accused was acquitted of sexual exploitation, as the Crown failed to prove beyond a reasonable doubt that the accused was in a position of trust or authority towards the complainant.

This motion concerned the defendants' application to set aside a Certificate of Pending Litigation (CPL) previously granted ex parte against their property.

The defendants argued material non-disclosure by the plaintiff, lack of plaintiff's assets to cover potential damages, and improper use of the CPL as pre-judgment execution.

The court found that the plaintiff failed to make full and fair disclosure of material facts in the ex parte motion, including the true nature of his claim, his financial capacity to meet damages, the unsigned nature of the underlying agreement, and the absence of key contractual terms (deadlines, subcontractor prohibitions).

Consequently, the court vacated the CPL due to this material non-disclosure, emphasizing the strict duty of candour required in ex parte proceedings.

The court also briefly considered the test for CPLs in fraudulent conveyance actions without a prior judgment, finding that even on that test, the CPL should be discharged.

The plaintiff bank, having obtained judgment against the defendants, brought a motion for a reference and judicial sale of the debtor's real property under the Rules of Civil Procedure, seeking to bypass the standard sheriff's sale process under the Execution Act.

The court dismissed the motion, finding no special circumstances to justify departing from the legislated sheriff's sale process.

The court emphasized that judicial resources should not be routinely expended on equitable execution processes where a statutory mechanism exists, absent exceptional and compelling reasons.

The plaintiff in a medical malpractice action moved to consolidate his action with two other related actions: a motor vehicle accident (MVA) action in which he was the defendant, and a long-term disability (LTD) action brought by the MVA plaintiff.

The court applied the test for consolidation under Rule 6.01 of the Rules of Civil Procedure.

Finding significant overlap between the MVA and LTD actions, the court ordered them to be tried together.

However, due to the early procedural stage of the malpractice action and the prejudice delay would cause to the MVA plaintiff's income loss claim under the Insurance Act, the court declined to strictly consolidate the malpractice action, ordering it to be tried with the others only if it is ready in time.

The plaintiff moved for summary judgment against the corporate defendants for unpaid amounts owing on equipment leases and against the personal defendants on their guarantees.

The defendants argued there were genuine issues for trial, including fundamental breach due to defective equipment, failure to mitigate, bad faith, and issues regarding insurance.

The court found no objective evidence to support the defendants' claims of defective equipment or bad faith.

The court also held that the plaintiff had no duty to mitigate given the liquidated damages clause and that the defendants were contractually responsible for insurance.

Summary judgment was granted for the outstanding amounts.

The defendant brought a motion to enforce a settlement agreement reached between counsel.

The plaintiff opposed the motion, arguing its former lawyer settled the action contrary to instructions and breached his duty of loyalty.

The court reviewed the communications between the plaintiff's principal and its former lawyer, finding the lawyer acted competently, loyally, and upon express instructions to settle.

The court found a binding settlement agreement existed and saw no reason to exercise its discretion to refuse enforcement.

The motion was granted, the action was dismissed, and costs of $10,000 were awarded to the defendant.

The parties brought cross-motions for interim relief in a family law proceeding.

The mother sought sole decision-making responsibility, while the father sought sole or shared parenting, partition and sale of the matrimonial home, and occupation rent.

The court granted the mother final decision-making responsibility after consultation with the father, noting the history of domestic violence and the father's failure to accept responsibility.

The court dismissed the father's requests to change the supervised parenting schedule, finding no exceptional circumstances to vary the existing interim order.

The father's claims for partition and sale and occupation rent were also dismissed as premature and inappropriate on an interim basis.

The applicant scheduled a motion as a 59-minute short motion, despite filing voluminous materials that clearly indicated it was a long motion.

The parties settled the motion before it was heard.

The court issued an endorsement reprimanding the practice of 'jumping the queue' by improperly scheduling long motions as short ones, noting it wastes scarce judicial resources and harms other litigants.

The court warned that future instances of this practice may result in costs consequences under the Family Law Rules.

The applicant commercial tenant sought a mandatory interlocutory injunction to regain possession of leased premises after being locked out by the respondent landlord for unpaid rent.

The landlord argued the tenant was improperly receiving federal pandemic rent subsidies while failing to pay full rent, invoking the doctrine of ex turpi causa.

The court granted the injunction, finding the landlord violated the clear statutory moratorium on commercial evictions under the Commercial Tenancies Act, and ordered the landlord to restore possession to the tenant upon payment of a specified sum towards arrears.

Following a family trial and subsequent reopened evidentiary process, the court determined the remaining issues of spousal support quantum, form of payment, and post-separation reimbursements between former spouses after a long-term marriage.

Applying the Divorce Act and the appellate framework governing lump sum support, the court held that support should be fixed near the mid-range of the SSAG and paid as a lump sum to achieve a clean break, avoid ongoing litigation, and reflect the parties' retired circumstances.

The court ordered lump sum spousal support of $175,000.

The court also accepted uncontradicted affidavit evidence and ordered reimbursement of $34,762.64 for utilities, HELOC carrying costs, and one-half of matrimonial home carrying costs paid post-separation.

In an uncontested family property trial, the court considered whether equalization under the Family Law Act should be displaced by an unequal division and whether the applicant was entitled to post-separation adjustments.

The evidence showed that after separation the respondent procured a substantial second mortgage on the matrimonial home, converted the proceeds to personal use, failed to account for the funds, and left the applicant bearing family and household obligations while defending creditor litigation arising from his business affairs.

Applying the high unconscionability threshold under s. 5(6), the court held that requiring the applicant to pay the ordinary equalization amount would shock the conscience of the court.

The court therefore relieved the applicant of the equalization payment and awarded net post-separation adjustments of $285,251.23, with prejudgment interest from the date of the application.

The defendants brought a motion for security for costs against the self-represented plaintiff, arguing that he was in breach of two prior costs orders and had failed to prove he had assets in Ontario.

The plaintiff claimed he misunderstood his legal obligations regarding the costs orders while attempting an appeal.

The court found that the ongoing failure to pay the costs awards justified an order for security for costs.

The court ordered the plaintiff to post $11,417 as security for costs up to the completion of examinations for discovery on a 'pay as you go' basis.