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 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.

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.

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 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 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.