Matthew Lambert

The Court of Appeal for Ontario dismissed the appeal of Albert Edward Green from the order of Justice John Krawchenko regarding the division of property and spousal support following the breakdown of his marriage to Kristine Jill Hill.

The court upheld the trial judge’s findings on asset valuation, the application of the Family Law Act’s equalization mechanisms, and the denial of spousal support, finding no error in the trial judge’s approach or conclusions.

Costs of $35,000 were awarded to the respondent.

The plaintiff, 1080977 Ontario Inc. operating as Stevans Sales and Marketing, sought leave to continue its action for breach of contract and unjust enrichment, despite having operated for 30 years without registering its business name under the Business Names Act.

The defendants opposed, arguing the failure to register was not inadvertent and that they were misled.

The court granted leave, finding the failure to register was inadvertent, there was no evidence the public was deceived, and the plaintiff had since registered the name.

The court also noted a residual discretion to grant leave to prevent an unfair outcome, emphasizing that denying leave would be a disproportionate punishment for a technical breach, especially given the underlying dispute was about unpaid invoices for goods and services received.

This family law motion addressed parenting time, decision-making responsibility, and child support for a child born in 2011.

The Applicant Mother sought to maintain the existing de facto parenting schedule and an increase in child support, while the Respondent Father sought to reinstate a shared parenting schedule as per a 2019 Separation Agreement.

The court found that a status quo of the child being in the Mother's primary care had been established for over three years.

Applying the test for changing a de facto status quo on an interim basis, the court determined that changing the current parenting arrangement was not in the child's best interests, considering the Father's delay in seeking reinstatement and his move to a different region.

Consequently, the Mother's primary care arrangement was maintained, and the Father was ordered to pay child support of $775 monthly, retroactive to January 1, 2023, based on his income, as the shared parenting threshold was not met.

The applicant, the sole beneficiary of her late son's intestate estate, brought an application to remove the respondent, her other son, as estate trustee.

The respondent failed to communicate with the applicant, delayed selling the estate's primary asset because he hoped to purchase it himself, rented the property without consultation, and failed to provide an accounting.

The court found that the respondent acted in his own self-interest, ignored the wishes of the sole beneficiary, and endangered the administration of the estate.

The application was granted, the respondent was removed as estate trustee, and a replacement trustee was appointed.

The applicant sought to add two non-parties, Francis Montour and Greg Hill, to a family law proceeding and compel their questioning, asserting their relevance to a trust claim over "on reserve" properties and a tobacco farming business.

The respondent and proposed added parties opposed.

The court, applying Family Law Rules 7(5) and 20(5), found that the dispute between the primary parties could be resolved without adding the non-parties and that the motion for questioning was premature as the applicant had not exhausted other disclosure methods.

The applicant's motion was dismissed.

Following the dismissal of the plaintiff's action on summary judgment, the defendants sought full indemnity costs against the plaintiff and its principal personally.

The court found that the plaintiff's principal had fabricated an agreement of purchase and sale to support the claim, constituting an abuse of process.

The court awarded substantial indemnity costs to the defendants and held the principal jointly and severally liable for the costs due to his fraudulent conduct.

The respondent in a family law proceeding brought a motion for extensive financial disclosure from the applicant, including business records, bank statements, and property valuations.

The applicant argued she did not keep business records after 2015 because she was exempt from filing income tax returns under the Indian Act.

The court granted the motion, holding that while the applicant may not have to keep records for tax purposes, she is still obligated to produce proper accounting records and valuations for the family law proceeding to determine income and property division.

The appellant obtained a British Columbia judgment against the respondent, which was registered in Ontario.

The appellant delayed enforcing the judgment for over six years because he believed there was little equity in the respondent's properties.

When the appellant sought leave to issue a writ of seizure and sale, the motion judge dismissed the motion, inferring that the appellant had waived his rights and that the respondent had detrimentally relied on the delay.

The Court of Appeal allowed the appeal, finding the motion judge made palpable and overriding errors.

The appellant's explanation for the delay was plausible, and the respondent could not have reasonably believed the appellant waived his right to enforce the $333,717.50 judgment, nor did she detrimentally rely on such a belief.

The plaintiff commercial tenant sued the defendant landlord and its principal for damages after the landlord refused to consent to a lease assignment to a prospective purchaser of the tenant's business.

The plaintiff alleged promissory estoppel, fraudulent misrepresentation, and intentional interference with contractual relations.

The defendants moved for summary judgment.

The court granted the motion and dismissed the action, finding that promissory estoppel cannot be used as a sword to found a claim, the alleged misrepresentation was a future promise rather than a statement of fact, and there was no evidence of unlawful interference.

The plaintiff's cross-motion to transfer a related Small Claims Court action was also dismissed.

The plaintiffs brought a motion to amend their statement of claim to include a claim for battery and punitive damages against the defendant plastic surgeon.

The court found that the proposed amendment to include battery introduced new material facts and a new cause of action that was statute-barred by the Limitations Act, 2002, due to inordinate delay.

However, the court allowed the amendment to include a claim for punitive damages, finding no prejudice.

The parties made written submissions regarding the costs of a motion on which the defendants were successful.

The defendants sought substantial indemnity costs of $32,434.14, arguing their offer to settle engaged Rule 49.10.

The court found the offer to settle did not engage Rule 49.10 because it contained stipulations not reflected in the final disposition.

The court awarded the defendants partial indemnity costs, but reduced the claimed amount due to duplication of counsel's efforts and the principle of proportionality, fixing costs at $18,295.86.

The plaintiffs brought a motion for leave to issue a Certificate of Pending Litigation (CPL) against a residential property, an order preserving the property, and an order that the proceeds of sale of another property be paid into court.

The dispute arose between the estate of a deceased sister and the surviving sister over properties originally owned by their mother.

The court dismissed the motion for a CPL and payment into court, finding that damages would be an adequate remedy and the plaintiffs did not demonstrate a serious prospect of ultimate success or risk of dissipation.

The court granted the defendants' cross-motion to permit the sale of the property, provided half the net proceeds are paid into court.

The plaintiff brought a motion for summary judgment against the defendants for vacant possession and payment under four mortgages in default.

The defendants argued that the guarantees and collateral mortgages signed by the spouses were unenforceable due to undue influence by their husbands.

The court found no genuine issue requiring a trial, noting that the spouses had received independent legal advice and signed the documents despite advice to the contrary.

The court held there was no evidence of actual or presumed undue influence.

Summary judgment was granted, ordering monetary judgments and writs of possession.

The plaintiff, a 66-year-old labourer with over 12 years of service, was terminated purportedly for cause after being arrested for off-duty criminal charges.

The plaintiff brought a motion for summary judgment for wrongful dismissal.

The court found that the employer failed to establish just cause, as the criminal charges were unrelated to the workplace, there was no evidence of reputational harm, and the allegations of dishonesty and cumulative discipline were unfounded.

The court awarded the plaintiff 10 months' reasonable notice.

The defendants' cross-motion to dismiss the claims against the individual manager was granted, as the manager acted within the scope of his employment.

The parties separated after a 13-year relationship and 10-year marriage.

The applicant sought an equal division of the proceeds from the sale of their jointly owned farm, while the respondent argued for an unequal division because he paid the majority of the down payment.

The court ordered the property sold and the proceeds divided equally, finding that an equal division was not unconscionable under section 5(6) of the Family Law Act.

The court also ordered the respondent to pay an equalization payment, child support arrears, and ongoing spousal support of $750 per month, while declining to order occupational rent due to a set-off against mortgage payments.

The defendant employer brought a motion to strike portions of a statement of claim alleging wrongful dismissal, mental distress, defamation, and punitive damages.

The court held that the pleading failed to comply with Rules 25.06 and 25.11 of the Rules of Civil Procedure because it contained unsupported claims for damages and lacked material facts necessary to support allegations of mental distress, punitive damages, and defamation.

The court emphasized that pleadings must include concise statements of material facts rather than bare legal assertions.

Instead of striking only certain paragraphs or ordering particulars, the court struck the entire statement of claim with leave to file a fresh pleading within 14 days.