Michael G. Emery

The applicant brought a motion seeking interim custody, child support, spousal support, exclusive possession of the matrimonial home, and financial disclosure.

The respondent sought expanded parenting time with the child of the marriage.

The court held that conflicting evidence prevented a finding on an interim basis that the respondent stood in loco parentis to the applicant’s two older children from a prior relationship.

The court imputed income of $100,000 to the respondent due to inadequate financial disclosure and lifestyle evidence, and ordered interim child and spousal support retroactive to the date of separation.

Interim parenting arrangements maximizing the child’s contact with both parents were established, and orders for disclosure, asset preservation, and exclusive possession of the matrimonial home were granted.

In complex multi-party litigation involving competing applications and actions, the moving parties sought advance production of documents prior to cross‑examinations on affidavits and before the close of pleadings.

The court rejected the argument that counsel had reached a binding agreement requiring early documentary production and held that no such agreement existed.

The court further held that under the Rules of Civil Procedure, affidavits of documents are generally not required until after pleadings close, absent exceptional circumstances where production is essential to plead.

Motions to disqualify counsel were not equivalent to summary judgment proceedings and therefore did not justify early disclosure.

The court denied the request for advance production and issued directions governing examinations and interim injunctive relief pending further motions.

The plaintiffs brought a motion under Rule 30.04(5) of the Rules of Civil Procedure seeking early production of documents held by a municipal employer relating to a complaint and investigation that allegedly led to the plaintiff’s employment termination.

The documents were said to be necessary to properly plead claims including defamation and negligent investigation.

The municipality resisted production prior to the close of pleadings while also indicating an intention to bring a Rule 21 motion to strike the claim.

The court held that the requested documents were essential to allow the plaintiffs to properly plead their causes of action and respond to a demand for particulars.

Early production was ordered to ensure fairness and avoid prejudice where the responding party controlled the key documents.

The respondent father brought a motion for temporary orders regarding custody, access, child support, and financial issues including carrying costs of the matrimonial home and an equalization payment.

The court ordered temporary joint custody with the children's primary residence remaining with the father, and granted the mother generous access.

The mother was ordered to pay interim child support and a proportionate share of Section 7 expenses.

The financial claims regarding the matrimonial home and equalization were adjourned to trial as they presented genuine issues requiring adjudication on proper evidence.

The moving party sought an interlocutory injunction restraining the respondents from dealing with inventory allegedly belonging to a partnership pending resolution of an application seeking dissolution of the partnership, an accounting, and damages.

The court applied the three-part test for interlocutory injunctions from RJR MacDonald Inc. v. Canada and found that although there was a serious issue to be tried regarding whether a partnership existed and whether certain inventory constituted partnership property, the moving party failed to establish irreparable harm.

Evidence showed that alternative financing remained available and that the retail business continued operating.

The balance of convenience favoured the respondent, who relied on the inventory to operate an online business and service debts.

The motion was dismissed, subject to terms preserving inventory management, accounting obligations, and monthly payments toward indebtedness.

In a medical negligence action, the self-represented plaintiff brought a broad motion seeking numerous forms of relief including adding additional defendants, converting the action into a class proceeding, increasing damages, obtaining injunctive relief against the defendant physician and his counsel, and compelling production of various medical records.

The court denied the plaintiff’s adjournment request and deemed the motion abandoned when the plaintiff failed to appear.

The judge held that, even if the motion had proceeded, most requested relief lacked evidentiary support or was legally unavailable, including claims against opposing counsel and a proposed wrongful death claim barred by limitation under the Trustee Act.

On the defendant’s motion, the court struck several paragraphs of the statement of claim as irrelevant or containing improper pleadings under Rule 25.06(1) of the Rules of Civil Procedure and issued directions regarding document disclosure, service, and litigation timelines.

Following a successful motion by certain defendants, the court determined the appropriate costs award.

The court exercised its discretion under s. 131 of the Courts of Justice Act and considered the principles governing reasonable costs, including the factors in Rule 57.01 of the Rules of Civil Procedure and the guidance from appellate jurisprudence.

Although the successful defendants sought recovery based on extensive hours claimed for research and preparation, the court found portions of the time claimed excessive.

Considering the moderate complexity of the issues, the conduct of the parties, and prior settlement offers, the court fixed a reduced but reasonable partial indemnity costs award.

A condominium corporation brought a motion seeking a finding of contempt and enforcement of a prior judgment requiring a unit owner to remove two dogs from his unit.

The respondent admitted he had not complied with the earlier order and sought an adjournment pending his motion to set aside that judgment.

The court held that a court order remains binding and enforceable unless and until it is set aside or overturned on appeal.

The respondent’s request for an adjournment was denied, and the court granted enforcement relief allowing entry to remove the dogs if necessary.

Costs were awarded to the condominium corporation.

The court imposed sanctions following a prior finding of civil contempt against a corporate respondent that failed to comply with court orders requiring disclosure and return of leased equipment.

Despite multiple opportunities to purge the contempt, the corporation and its controlling officer continued to ignore the orders and failed to appear at the sanctions hearing.

Applying factors from appellate and prior Superior Court jurisprudence concerning proportionality, mitigating and aggravating circumstances, deterrence, and denunciation, the court concluded that significant sanctions were required.

The corporation was fined and its sole officer and director was sentenced to a custodial term, with a warrant of committal issued unless compliance occurred.

The incarceration order could be set aside or shortened if the contemnor complied with the earlier court orders.

The respondent mother brought a motion for exclusive possession of the matrimonial home, interim support, and a temporary parenting order.

The parties continued to reside together post-separation, creating a highly acrimonious and stressful environment for the children.

The court granted the mother exclusive possession, finding it in the children's best interests to remain in their established neighborhood with their primary caregiver.

The court also ordered shared parenting, interim support of $2,000 per month plus household expenses, and comprehensive financial disclosure from the father.

Following reasons on a motion concerning undertakings and production of documents in a wrongful dismissal action, the court determined costs and clarified a prior order.

The court exercised its discretion under Rule 59.06(1) of the Rules of Civil Procedure to amend the earlier order to include travel-related records evidencing the employee’s attendance at certain meetings as the employer’s sole representative.

In assessing costs under s. 131 of the Courts of Justice Act and Rule 57.01, the court found the motion moderately complex and necessary for the employee to advance the claim, particularly given delayed responses to undertakings.

The employee’s bill of costs was largely accepted with partial indemnity adjustments to counsel’s hourly rate.

Costs were awarded for fees, disbursements, and applicable HST, with no additional costs for the written submissions on costs.

The plaintiffs brought a motion to enforce previous orders requiring the defendants to answer undertakings and questions taken under advisement from examinations for discovery.

The plaintiffs initially abandoned a request for a contempt finding but later sought to resurrect it based on new case law.

The court refused to allow the contempt motion to proceed, finding it unfair to the defendants, and noted that contempt was not proven beyond a reasonable doubt regardless.

However, the court found the defendant's answers to undertakings were insufficient 'window dressing' and issued a 'last chance' order compelling proper answers and further attendance for discovery, warning that future non-compliance could result in pleadings being struck.

The appellants appealed the dismissal of four Small Claims Court actions regarding towing and storage liens under the Repair and Storage Liens Act.

The deputy judge had dismissed the actions mid-trial on a nonsuit motion, finding the wrong parties were named.

The Divisional Court allowed the appeal, finding the deputy judge made palpable and overriding errors regarding the proper parties and erred in law by granting a nonsuit motion before the plaintiffs had completed their case and without putting the defendants to an election.

A new trial was ordered.

The moving defendants brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike the amended statement of claim for failing to disclose a reasonable cause of action.

The plaintiffs alleged defamation and intentional interference with economic relations arising primarily from emails authored by another defendant.

The court held that the pleadings contained no material facts linking the moving defendants to the allegedly defamatory statements or establishing that they acted in concert or through an agency relationship with the author of the emails.

The pleadings also failed to properly particularize the alleged tort of intentional interference with economic relations or inducement of breach of contract.

The action against the moving defendants was dismissed.

The plaintiff brought a civil action under the Dog Owners’ Liability Act after a dog owned by the defendants jumped on her in a parking lot, causing puncture wounds and scratches.

The defendants admitted ownership of the dog but disputed that the injuries were caused by a bite, asserting the dog was muzzled at the time.

The court held that liability under the Dog Owners’ Liability Act is strict once a bite or attack is established and that the defendants, as owners, were jointly and severally liable for damages resulting from the attack.

However, the court found insufficient evidence to conclude that the injuries were caused by a bite rather than by the dog’s paws or claws.

Based on comparable case law and the limited evidence of injury, the court awarded modest general damages and declined to find contributory negligence.

The Attorney General sought forfeiture of cash seized from a vehicle following a traffic stop under the Civil Remedies Act, 2001.

Police discovered marijuana and approximately $11,775 in mixed Canadian and U.S. currency in the vehicle, and later found drugs, cocaine, and trafficking paraphernalia at the driver's residence.

The interested parties claimed the money represented savings and loans intended to purchase DJ equipment, but their explanations were inconsistent and unsupported by objective evidence.

The court found on a balance of probabilities that the cash was likely intended to purchase drugs for resale and therefore constituted an instrument of unlawful activity.

No interested party established legitimate or responsible ownership, and forfeiture was not clearly contrary to the interests of justice.

The defendant car auction company brought a Rule 21.01(1)(b) motion to dismiss a negligence claim arising from injuries caused when a stolen vehicle collided with the plaintiffs’ vehicle ten days after the theft.

The moving party argued that it was not reasonably foreseeable that a thief would negligently cause harm to third parties days after a theft, relying on appellate authority concerning foreseeability in car theft cases.

The court held that, accepting the pleaded facts as true, it was not plain and obvious that the claim was certain to fail because the pleadings alleged circumstances that could support foreseeability, including the possibility that the thief was dangerously driving while evading police.

The court also found the motion premature given the absence of evidentiary context typically available after discovery or trial.

However, several subparagraphs of the amended statement of claim were struck as speculative and lacking material facts.

The plaintiff brought a motion to set aside an appeal order made by a single judge of the Divisional Court, claiming he failed to appear because he did not receive notice of the hearing.

The defendants brought a cross-motion for security for costs.

The court found it lacked jurisdiction under the Rules of Civil Procedure and the Courts of Justice Act to set aside the appeal order.

Furthermore, the court declined to exercise any residual discretion, noting the plaintiff failed to update his address with the court and lacked diligence.

Both the motion and cross-motion were dismissed.

In post‑separation family litigation, the moving party sought a finding that the opposing party was in contempt of several court orders relating to disclosure and spousal support, alleging multiple grounds including failure to disclose, breach of court orders, perjury, abuse of process, and misrepresentations in financial statements.

The court reviewed the strict three‑part test for civil contempt requiring a clear order, deliberate breach, and proof beyond a reasonable doubt.

It concluded the evidence did not establish a wilful breach of any clear order and noted that contempt is a remedy of last resort in family proceedings where alternative remedies exist under the Family Law Rules.

Allegations such as perjury, abuse of process, or non‑compliance with procedural rules were not proper grounds for contempt in this context, and the Charter did not apply to disputes between private litigants.

Additional relief mentioned only in the supporting affidavit could not be considered because it was not specified in the notice of motion.

The applicant franchisor commenced an application in Toronto seeking injunctive relief against the respondent franchisees for alleged breaches of a restrictive covenant in Mississauga.

The respondents brought a motion under Rule 13.1.02 to transfer the application to Brampton.

The court weighed the factors under Rule 13.1.02(2)(b) and found that the events, damages, subject matter, and convenience of parties and witnesses all favoured Brampton.

The motion to transfer venue was granted, subject to the approval of the Regional Senior Justices.