Marvin Kurz

The moving parties brought a motion for leave to appeal a March 31, 2021 decision of Perell J. The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 inclusive to the responding party.

The moving parties brought a motion for leave to appeal a February 24, 2021 decision.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $3,800 to the responding parties.

The moving party brought a motion for leave to appeal the April 22, 2021 decision of G.A. MacPherson J. The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondent fixed in the amount of $4,700.

The oversight council brought a motion to seal and redact the record of proceedings in an application for judicial review brought by the applicant.

The proposed redactions aimed to protect the identities of witnesses and deceased individuals.

The Divisional Court adjourned the motion, finding it would be contrary to the due administration of justice to proceed without giving notice to the potentially affected non-parties whose privacy interests were at stake.

The applicant father brought an urgent motion for primary parenting of the parties' adult child with autism, following an altercation at a parenting changeover where the respondent mother was charged with assault with a weapon and subsequently withheld the child.

The mother sought an adjournment to review materials after recently retaining counsel.

The court granted the adjournment but ordered the immediate return of the child to the father, establishing an interim-interim schedule of two weeks with the father and one week with the mother to minimize conflict and changeovers.

The plaintiffs moved for an interim order to preserve the proceeds of sale of a property, an accounting of assets, and a sworn statement of assets from the defendants.

This is the second action against the defendant regarding a $250,000 loan.

The plaintiffs allege the defendant used the loan to help pay for a property registered in his former wife's name.

The defendant did not participate in the motion.

The court found insufficient evidence that the plaintiffs' funds were diverted to the property or that the defendant received the proceeds of its sale.

The motion was dismissed against the defendant without prejudice, and dismissed against the former wife on consent that she provide a trust ledger from the property's sale.

The applicant husband, an airline pilot, brought a motion to vary or stay temporary child and spousal support orders and to release funds from the sale of the matrimonial home.

The husband had lost his employment due to a voluntary leave of absence for immigration purposes, followed by pandemic-related layoffs and the onset of tinnitus.

The court found that the husband met the test for an interim variation, as he currently had no income and was not intentionally underemployed given the pandemic and his medical condition.

The court suspended the husband's support obligations on an interim basis and ordered the release of $35,000 to each party from the matrimonial home proceeds.

The plaintiff bank brought a motion for default judgment against the defendant for an unpaid conditional sales agreement for a vehicle.

The bank sought monetary judgment and a declaration that the debt arose from fraudulent misrepresentations, aiming to prevent the debt from being released in a potential future bankruptcy.

The court granted the monetary judgment but dismissed the request for a declaration, finding the pleadings and evidence insufficient to establish fraud.

The court also held that it should not issue hypothetical declarations regarding bankruptcy exceptions before a bankruptcy proceeding actually arises.

The plaintiffs brought a motion to compel the defendants, the City of Hamilton and the Hamilton Region Conservation Authority, to answer questions refused during examinations for discovery.

The underlying action involves a minor plaintiff who sustained catastrophic injuries after falling from a trail at Albion Falls Park.

The court reviewed the refused questions, applying the test for relevance under Rule 31.06 of the Rules of Civil Procedure.

The court ordered the defendants to answer several questions related to prior safety concerns, incident reports, and the identities of individuals with knowledge, while upholding refusals for irrelevant questions.

Success was divided, and costs were awarded to the plaintiffs.

Following an appeal of a family law arbitration award where success was divided, both parties sought costs of the appeal.

The applicant sought $70,000 and the respondent sought $111,734.71.

The court reviewed the principles of costs under the Family Law Rules, including the impact of offers to settle and divided success.

Finding that neither party was predominantly successful and neither acted unreasonably or in bad faith, the court ordered that each party bear their own costs of the appeal.

The court also reduced the costs of the arbitration payable by the applicant to the respondent from $75,000 to $49,150 to reflect the appellate outcome.

The applicant father brought an urgent motion for an equal shared parenting schedule and an order restricting the child's residence to within 20 km of the matrimonial home, after the respondent mother unilaterally moved with the child to Toronto.

The court found the father's evidence more credible, noting that the mother had misled her own witnesses regarding her support for shared parenting.

Applying the newly amended Divorce Act provisions on best interests and relocation, the court held that the mother's unilateral self-help measures were inappropriate and that an equal shared parenting arrangement was in the child's best interests.

The court ordered a 2-2-3 rotating schedule and required the mother to relocate the child's residence to within 35 km of the matrimonial home.

The creditor brought two motions to enforce a restitution order against a former employee convicted of theft.

The first motion sought to compel the debtor to reattend a judgment debtor examination after she evaded service and failed to appear.

The second, brought without notice, sought leave to issue a writ of seizure and sale more than six years after the original order.

The court granted both motions, permitting service via social media and mail, and confirming that a restitution order entered as a civil judgment attracts post-judgment interest by operation of law.

This motion concerned whether a debt arising from a consent judgment, obtained by M.O.S. MortgageOne Solutions Ltd. (MOS) against William Heidary, would survive Heidary's discharge from bankruptcy under sections 178(1)(d) and (e) of the Bankruptcy and Insolvency Act (BIA), and whether the bankruptcy stay should be lifted.

MOS argued that the underlying amended statement of claim pleaded fraud and invoked BIA s. 178(1)(d), and that Heidary's consent to judgment merged these issues into the judgment, making it a debt not released by bankruptcy.

Heidary contended that fraud was not proven and the judgment made no explicit reference to its survival post-bankruptcy.

The court found that the underlying pleadings, which clearly raised fraud and the applicability of s. 178(1)(d), were sufficient for the debt to survive bankruptcy, even without explicit mention in the consent judgment.

The court granted the declarations sought by MOS.

The applicant, Donald Bodkin, moved for an order to convert his application into an action under Rule 38.10(1)(b) of the Rules of Civil Procedure, arguing that the case involved highly contested facts, credibility issues, and required processes inherent to an action like pleadings and examinations for discovery.

The respondents opposed the motion, citing the applicant's legal experience, potential limitation period issues, and alleged delay tactics.

The court found that the test for conversion was met due to significant material facts in dispute, complex issues requiring credibility assessment, and the necessity of a full discovery process.

The court exercised its discretion to grant the conversion, finding no uncompensable prejudice to the respondents.

The applicant father brought a motion to find the respondent mother in contempt of four court orders regarding his parenting time and an order requiring disclosure of information about the child.

The court found that the mother had willfully disobeyed the parenting time orders by failing to take positive steps to require the 15-year-old child to attend access, instead encouraging the child's estrangement.

The court found the mother in contempt for the parenting time breaches but exercised its discretion not to find her in contempt for failing to disclose the child's babysitting address, reserving the penalty to a subsequent remedies hearing.

The Applicant mother and Respondent father each brought motions seeking various relief concerning custody, access, and support for their two young children.

A key preliminary issue was the admissibility of an expert report from the mother's psychotherapist, which the court found inadmissible due to lack of expertise and objectivity.

The court determined it was in the children's best interests for their primary residence to remain with the mother, but rejected the mother's request for supervised access, ordering unsupervised access for the father with escalating parenting time.

Interim child and spousal support payments were ordered, and the support motion was adjourned for further evidence.

The respondent (wife) brought a motion to enforce a consent order requiring the applicant (husband) to transfer his interest in a holding company and resign as officer/director, as a spousal tax-free capital rollover.

The husband refused to comply, arguing he was unaware he had signed a personal guarantee for the dental practice's line of credit and that the order should be set aside due to mutual or unilateral mistake, or unconscionability, as it did not address his release from the guarantee.

The court found no valid reason to set aside the order, noting the husband was represented by counsel, had an existing indemnity, and the wife had attempted to secure his release from the bank without success.

The court dismissed the husband's arguments of mistake and unconscionability, emphasizing that buyer's remorse is not a basis to disobey a consent order.

The motion to enforce the order was granted, compelling the husband to comply within seven days, regardless of the guarantee release, and ordering the wife to provide a further indemnity.

The applicant wife sought temporary child and spousal support, payment of matrimonial home mortgage and line of credit, a certified business valuation, advance costs for a business valuator, and third-party records.

The respondent husband sought to sever the divorce from corollary relief and dismiss the wife's motions.

The court imputed an annual income of $250,000 to the husband and $15,000 to the wife, ordered retroactive and ongoing child support of $3,277/month, and retroactive and ongoing spousal support of $4,666/month.

The husband was ordered to continue mortgage payments and pay $20,255 in advance costs for the wife's business valuation.

Third-party records were ordered to be produced.

The divorce was severed from corollary relief.

The LSO defendants brought a motion to strike the plaintiff's action.

The plaintiff, who is self-represented, sought a further indefinite adjournment of the motion, claiming that psychological disabilities prevented him from participating.

The court found that the medical notes provided by the plaintiff's treating physicians were insufficient to establish an inability to participate in the proceedings.

The court denied the indefinite adjournment, set a litigation schedule for the motion to strike, and allowed the plaintiff to bring a further motion for adjournment if supported by cogent expert medical evidence.

The applicant mother brought a motion for an interim variation of final parenting and child support orders, seeking sole custody, updated table support, and increased section 7 expenses for the parties' 15-year-old child's elite ballet training.

The parties resolved the parenting issues on consent.

The court applied the Berta test for interim variation and found the mother established a strong prima facie case and hardship regarding the ballet expenses.

The court ordered the self-represented respondent father to pay updated table support of $1,851 per month and increased his section 7 contribution to $1,000 per month on a temporary basis.