M. P. Eberhard

Following a successful motion to change resulting in the father obtaining primary care of the child after a five‑day trial, the court addressed costs.

Although the mother reasonably contested the change despite an assessor’s recommendation favoring the father, the father remained the successful party.

The court emphasized the civility of the litigation and acknowledged the financial realities faced by both parties.

Costs were awarded on a partial indemnity basis but structured to avoid immediate enforcement against the mother due to her limited resources.

The award was fixed but not enforceable through family support enforcement mechanisms or set‑off against ongoing child support.

A trucking company sought repayment of customer payments retained by a factoring company after the parties terminated their factoring agreement.

The defendant alleged the funds were applied to a $50,000 oral consulting agreement and outstanding contractual fees.

The court rejected that evidence as inconsistent with the documentary record and drew adverse inferences from missing accounting records.

Finding no juristic reason for the defendant to retain the funds, the court held the retention constituted unjust enrichment and ordered repayment.

The plaintiff subcontractor moved for summary judgment for unpaid contract and extra work totaling $131,919.97 under a construction contract.

The defendant contractor asserted deficiencies and attempted to rely on claims arising from a separate construction project to assert set-off.

The court found the plaintiff’s claim was fully proven and largely undisputed, except for a limited deficiency claim forming part of a counterclaim.

The court held that statutory set-off under s. 17(3) of the Construction Lien Act did not apply because the separate project involved different parties and lacked contractual privity, and equitable set-off was also unavailable due to insufficient connection between the projects.

Summary judgment was granted for the plaintiff with enforcement partially stayed pending trial of the lien claim and reduced counterclaim.

The father brought a motion to change the primary care of his five-year-old son from the mother in Orillia to himself in London.

The child had previously been in week-about care until starting school.

A privately retained assessor recommended the father assume primary care due to the mother's struggles with effective discipline and controlling her household.

The court weighed the benefits of the father's consistent parenting against the risk of separating the child from his mother and siblings.

The court granted the motion, finding that the child's need for consistent discipline to self-regulate his behaviour was paramount, and ordered primary care to the father with a detailed access schedule for the mother.

The applicant sought an interlocutory injunction to stay a decision of the County Council lifting a stop work order and confirming a special permit that allowed the respondent landowner to cut trees on its property.

The applicant argued that the County Council denied it natural justice by accepting reply evidence without allowing rebuttal and by allowing two councillors who had not heard the evidence to vote.

The court dismissed the motion, finding no serious issue to be tried regarding natural justice, as the reply evidence was responsive to unexpected assertions and the two mistakenly recorded votes made no mathematical difference to the outcome.

The court also found the applicant failed to demonstrate irreparable harm or that the balance of convenience favoured an injunction.

In an interim family law motion concerning parenting arrangements for two young children, the court reconsidered primary care following a summer parenting schedule intended to test the parties’ ability to support the children’s needs and encourage relationships.

Although the applicants had historically provided strong medical and educational support, the court found they demonstrated a persistent exclusionary attitude toward the respondent parent.

The respondent showed partial progress in arranging services and schooling but had not fully implemented structured programming.

Relying in part on prior involvement from the Office of the Children’s Lawyer and emphasizing the importance of fostering parental relationships, the court ordered joint custody with primary care to the respondent parent on an interim basis.

Detailed directions were made regarding medical treatment, communication, schooling, transportation, and financial responsibilities pending trial.

A young person appealed convictions and sentence arising from participation in forcing the complainant into a washroom where a sexual assault occurred.

The appellant argued that the trial judge applied unequal credibility analysis, misapplied the R. v. W.(D.) reasonable doubt framework, and demonstrated a reasonable apprehension of bias.

The appeal court reviewed the trial record and found the trial judge properly assessed credibility, including rejecting the appellant’s evidence in light of corroboration from another participant and the complainant’s consistent account.

The court held the trial judge correctly applied the W.(D.) framework and did not reverse the onus or display bias.

Both conviction and sentence appeals were dismissed.

Following earlier reasons directing that each party bear their own costs except those generated by counsel for the respondent necessitated by the applicant’s self-represented status, the court determined the appropriate quantum of costs.

The respondent filed a bill of costs seeking fees and disbursements totalling $2,767.03 including HST.

The applicant disputed certain entries and the inclusion of work allegedly outside the permitted category.

The court accepted that some interactions could not fully be attributed to costs caused by the self-represented status and reduced the claim.

Costs were fixed at $2,300.

The moving party sought leave to appeal a costs order made by a case management judge in favour of certain defendants after the moving party had noted them in default.

The underlying dispute arose from procedural disagreements concerning the timing of a jurisdiction motion and related examinations.

The case management judge found the default tactic unreasonable and unnecessary given the defendants’ clear intention to defend and the availability of a scheduled case conference to resolve the procedural issues.

The court held there was no basis to doubt the correctness of the costs decision and that the dispute raised no issue of general importance warranting leave to appeal.

Leave to appeal the costs order was denied.

The applicant father and respondent mother engaged in a high-conflict family law trial regarding parenting, child support, and property division.

The court found that the mother's unrelenting insistence on her methods and values, and her pursuit of confrontation, caused the children to be in need of protection.

Despite the father's request for shared custody based on parental alienation, the court ordered joint custody with primary residence to the mother, but carved out final decision-making for extracurricular sports to the father to prevent his exclusion.

The court imposed a strict parenting schedule, mandated reconciliation counselling and a parenting coach, and ordered child support and equalization payments.

On an interim family motion concerning whether a child's primary residence should transition from paternal grandparents and the father to the mother, the court declined to make a final determination and treated the request as interim relief pending trial.

The court found the mother to be the more capable parent as between the parents, but also recognized continuity concerns and the need for better information about the child's medical and educational supports before ordering an immediate residence change.

Relying on the child's best interests, the court imposed a detailed summer parenting schedule for both children, directed shared transportation, required disclosure of appointments and resource information, and preserved joint custody and equal access to information pending continuation of the motion.

The plaintiff, Graydon Cragg, funded and established a financial services business through his corporation, 1350369 Ontario Inc. The defendants, Tom Jarvis and Darren O'Halloran, managed the business and developed its client base.

In 2005, the defendants abruptly left the business, taking the client files and staff to set up a competing operation.

The court found that Jarvis and O'Halloran were employees and fiduciaries of the plaintiff's business, not independent contractors.

By taking the book of business without compensating the plaintiff, they breached their fiduciary duties and were unjustly enriched.

The court directed a business valuation to determine damages.

The defendants sought costs thrown away following an adjournment of a scheduled trial.

The court noted that the adjournment resulted from the plaintiff’s lack of preparation and disclosure, and criticized the plaintiff’s counsel for making statements about important facts that were later retracted as false.

The plaintiff’s counsel also failed to provide written submissions on costs despite being given a deadline.

The court awarded the defendants costs thrown away on a full indemnity basis for the futile attendance.

Following the release of reasons for judgment, written submissions prompted the court to address issues not previously mentioned.

The court confirmed that the defendant’s counterclaim was dismissed.

The plaintiff was awarded prejudgment interest pursuant to ss. 127 and 128 of the Courts of Justice Act from January 30, 2010.

The court also ordered post‑judgment interest in accordance with ss. 127 and 129 of the same statute.

The applicant sought termination of a guardianship order over his spouse’s property following recovery from a medical condition that had temporarily impaired her capacity.

The court considered contemporaneous medical evidence from two treating physicians indicating the subject had regained the ability to understand and manage her property and financial affairs.

All family members supported termination of the guardianship, and the applicant accepted transactions that were contrary to his own financial interest, supporting the authenticity of the subject’s expressed wishes.

Although the Public Guardian and Trustee raised concerns about fluctuating health and independent representation, the court found sufficient safeguards in the record to proceed.

The guardianship order was terminated effective the date the subject regained capacity.

A long‑term clerical employee sued for wrongful dismissal after more than 33 years of service with a sole practitioner lawyer whose practice closed.

The defendant failed to appear at trial and the matter proceeded in his absence.

The court applied the Bardal factors, emphasizing length of service and age, and rejected the notion that clerical employees are subject to a cap on reasonable notice.

The employee, aged 66 at termination and intending to work two more years, was awarded damages based on 18 months’ notice plus unpaid vacation pay.

Costs were awarded on a substantial indemnity basis following a Rule 49 offer to settle that the plaintiff exceeded at trial.

Following a jury trial arising from a motor vehicle accident that resulted in a damages award exceeding $1 million, the court addressed post‑trial issues of costs and pre‑judgment interest.

The statutory third party insurer had denied coverage but fully participated in the litigation under s. 258 of the Insurance Act.

The court held that the insurer’s litigation positions and refusal to accept the plaintiff’s settlement offers necessitated the lengthy trial and justified significant cost consequences.

Pre‑judgment interest under the Courts of Justice Act was awarded as claimed.

The court fixed costs in favour of the plaintiffs, including partial indemnity costs to trial and substantial indemnity costs thereafter.

Following a jury trial awarding damages exceeding $1 million for injuries arising from a motor vehicle accident, the plaintiffs sought directions regarding their ability to pursue recovery against the defendant driver's insurer, which had denied coverage and participated in the action as a statutory third party under s. 258(14) of the Insurance Act.

The insurer argued the plaintiffs lacked standing to seek directions and that any claim for insurance proceeds must be brought by a fresh action.

The court held that the judgment creditor effectively stands in the shoes of the insured for purposes of addressing coverage issues and may participate in determining whether relief from forfeiture or coverage applies.

Requiring a new statement of claim would be inefficient where the insurer had fully participated in the litigation and suffered no prejudice.

The court ordered disclosure of the insurer’s basis for denying coverage and directed that the issue proceed by motion before the trial judge.

Following extensive family litigation, the court determined issues arising from competing motions to change concerning child support, post‑secondary education expenses, and alleged rental income of the payor parent.

The court considered whether rental property income should be included in income for child support purposes and whether deductions were limited to mortgage interest, property taxes, and insurance.

Due to evidence suggesting income suppression through the transfer of rental properties to a spouse, the court drew an adverse inference and imputed income to the payor parent at $60,000.

The court addressed child support obligations for children involved in junior hockey arrangements and post‑secondary education, setting prospective table support and allocating education expenses between the parents.

Retroactive adjustments were largely declined and the court concluded no refund or underpayment was owed prior to the new order.

The defendant moved to set aside a default judgment and sought leave to file a statement of defence and counterclaim, or alternatively to stay enforcement of the judgment pending determination of a counterclaim alleging deficiencies in contractual work.

The court found no evidence that the defendant intended to defend the action when the defence was due and noted repeated warnings and follow-ups from the plaintiff before default judgment was obtained.

The alleged deficiencies were not raised until months after judgment and enforcement efforts.

Applying the principles governing motions to set aside default judgment, the court held the defendant had effectively made a conscious decision not to participate in the litigation and had not demonstrated a meritorious defence at the relevant time.

The default judgment remained enforceable, although the defendant’s counterclaim could proceed independently.