Michael F. Sirdevan

This decision addresses the costs of an application where the Town of Cobalt sought a finding that its aggregate extraction use was permitted under a zoning by-law, which was ultimately dismissed.

The Township of Coleman, as the successful respondent, sought full indemnity costs.

The court determined that costs should be awarded on a partial indemnity basis, deducting expenses unrelated to the Superior Court application and ruling that a prior proposal by the respondent did not qualify as a Rule 49 offer to settle.

The Town of Cobalt was ordered to pay $85,000.00 in costs to the Township of Coleman.

The applicant municipality sought a declaration that its use of a property for commercial aggregate extraction was permitted under the applicable zoning by-law or, alternatively, was a legal non-conforming use.

The property had previously been used as a municipal park, with only small-scale, incidental extraction for municipal purposes.

The court found that the current large-scale commercial extraction was a difference in kind, not merely an intensification of the pre-existing use.

Consequently, the application was dismissed, and the extraction was deemed not to be a permitted use.

In supplementary reasons following a summary judgment for Crown wardship, the court revised its order to reflect that the parties' consent to finding the children in need of protection applied only to sections 37(2)(b)(i) and (ii) of the Act.

The mother's motion to adjourn the access trial was dismissed.

The access trial did not proceed as the parties filed a consent resolving the issue.

The applicant Society brought a motion for summary judgment seeking to have two children found in need of protection and made Crown wards with no access for the purpose of adoption.

The respondent mother consented to the finding that the children were in need of protection.

The court found no genuine issue for trial regarding the disposition of Crown wardship, given the mother's history of transience, substance abuse, and inability to adequately care for the children.

However, the court found a genuine issue for trial regarding whether the mother should have access to the children, noting her recent rehabilitation efforts and the children's attachment to her.

The motion was granted in part, with Crown wardship ordered and a trial directed on the issue of access.

Following a motion to change spousal support where support was ordered to step down over three years, both parties sought costs.

The moving party (former husband) had sought immediate termination, while the responding party (former wife) had offered a step-down over seven years or a lump sum.

The court found the responding party was the successful party as she delayed termination for three years, whereas the moving party was inflexible in demanding immediate termination.

The court awarded the responding party costs of $4,500, taking into account her partial success and her offer to settle.

The applicant father, convicted of aggravated assault and assault with a weapon against the respondent mother, sought supervised access to their two children, whom he had not seen for over five years.

The mother opposed, citing fear for her safety and the children's well-being, a position supported by the Children's Aid Society.

The court, applying the "best interests of the child" test under the Children's Law Reform Act, found insufficient evidence that access would significantly benefit the children, particularly given the long period of no contact and the father's lack of remorse for his past actions.

The father's application for access was dismissed, but a prior restraining order against him was terminated, and he was granted rights to receive information about the children's welfare and to share his life and heritage with them annually.

The respondent sought to terminate indefinite spousal support, arguing the applicant should be self-sufficient after receiving an equalization payment and engaging in a failed business venture.

The applicant sought continued support for at least four more years.

The court, reviewing the spousal support order under s. 17(7) of the Divorce Act, found a continuing compensatory element due to the applicant's role in the marital farm business.

While acknowledging the applicant's post-separation business decisions contributed to her hardship, the court determined that immediate termination would impair self-sufficiency.

Spousal support was ordered to terminate in three years with a step-down provision, balancing the applicant's need for self-sufficiency in a new career and the respondent's impending retirement.

The applicant brought an urgent motion under rule 14(4.2) of the Family Law Rules seeking a temporary order permitting relocation with a child to Alberta due to the applicant’s spouse being temporarily transferred for employment.

The motion sought to proceed before a case conference on the basis of urgency tied to an upcoming school start date and planned relocation timeline.

The court held that the circumstances did not constitute urgency or hardship within the meaning of rule 14(4.2), emphasizing that parties cannot manufacture urgency through delay or logistical convenience.

The court found no evidence of harm to the child if the relocation decision were briefly delayed and concluded that the responding parent was entitled to a full opportunity to respond before a potential status quo change.

The request to proceed without a case conference was therefore dismissed and directions were given to schedule a case conference and motion promptly.

The Children's Aid Society brought a summary judgment motion in a status review application regarding two children who had been placed with their maternal grandparents.

The Society sought a final custody order for the grandparents, a continuation of a restraining order prohibiting the parents from contacting the children, and an order denying parental access.

The parents opposed the motion, arguing that access and their involvement in monitoring the grandparents' care should be determined at trial.

The court found no genuine issue requiring a trial, noting the mother's ongoing conflictual behaviour and the parents' lack of insight as established by a recent parenting capacity assessment.

Summary judgment was granted, placing the children in the grandparents' custody and denying the parents access.

The parents appealed a summary judgment finding their newborn child in need of protection and making the child a Crown Ward without access.

The child was apprehended at birth due to the parents' extensive history with the children's aid society, which included four other children being removed from their care.

The motions judge relied on past parenting evidence and found no genuine issue for trial.

The Divisional Court dismissed the appeal, finding no palpable and overriding errors in the motions judge's application of the summary judgment rules or reliance on past judicial findings.

Following the dismissal of the appellant's appeal, the Divisional Court issued a supplementary endorsement regarding costs.

The appellant was ordered to pay the respondent's costs of the appeal, fixed at $5,000 inclusive of disbursements plus HST.

The costs were directed to be paid to Legal Aid Ontario.

The appellant rental car company appealed a Small Claims Court decision dismissing its claim for vehicle damage against the respondent renter.

The deputy judge had refused to allow the appellant to rely on evidence that an unauthorized driver was operating the vehicle at the time of the accident, citing a lack of proper notice in the pleadings.

The Divisional Court allowed the appeal and ordered a new trial, finding that the deputy judge erred in law by holding the appellant to an unworkable standard of pleading for Small Claims Court and failing to construe the rules liberally.

The court also found the deputy judge misapprehended the evidence regarding whether the accident was properly reported to the police and the rental company.

The appellant mother appealed an order striking her pleadings and granting final sole custody of the parties' two young children to the respondent father.

The motion judge had struck the mother's pleadings due to her repeated failure to comply with interim orders requiring her to return the children from Quebec to Ontario.

The Court of Appeal allowed the appeal, finding that while the motion judge had the power to strike the pleadings, it was a material error to make a final custody order without sufficient evidence to determine the best interests of the children under section 24 of the Children's Law Reform Act.

The matter was remitted for an expedited determination of custody and access.