Michael Joseph Cupello

This trial addressed two outstanding issues from a prior settlement: whether the payor spouse's spousal support obligation should bind his estate, and if so, whether it should be secured.

The court found that the recipient spouse was in need and that the payor's death was not unanticipated given his age and declining health.

Applying principles from Katz v. Katz, the court ordered a limited spousal support obligation of $25,000 to bind the payor's estate, but declined to order security for this obligation, citing the payor's uninsurability and potential complications for future asset sales.

The respondent sought to vary interim child and spousal support orders, arguing for annual adjustments to child support and termination or reduction of spousal support due to decreased income and accumulated arrears.

The applicant opposed, arguing the issues were for trial due to complex income determination, including the respondent's business income and potential imputation of income to both parties.

The court dismissed the motion, finding insufficient evidence to determine income for support purposes and that the issues were best left for a full trial.

The applicant child protection society sought a finding that the children were in need of protection under ss. 74(2)(h) and 74(2)(i) of the Child, Youth and Family Services Act, 2017, due to parental mental health, substance use, neglect of medical needs, and unsanitary home conditions.

The respondent mother opposed the application.

The court found the children were not in need of protection under the pleaded grounds of emotional harm but found them in need of protection under ss. 74(2)(b)(i) and (ii) due to the parents' failure to adequately care for, provide for, supervise, or protect the children, and a pattern of such behavior, particularly concerning unsanitary living conditions and exposure to adult conflict.

This decision addresses the final stages of a corporate winding-up application for Norall Group Inc. and Norall Group Contracting Inc., including the passing of accounts and the determination of outstanding costs.

The court resolved disputes regarding an interim dividend and an interim distribution order, finding that a respondent shareholder was not entitled to a priority distribution due to significant outstanding costs owed to the applicants.

The corporations were ordered wound up, and the applicants were appointed trustees to complete the process, with the respondent's shareholder entitlement deemed nil due to her outstanding liabilities.

The applicant, Brown’s Clearwater West Lodge Inc., brought two motions: one to consolidate two related actions (a share purchase action and a mortgage action) and another to set aside default judgments obtained by the respondent, Caroline Manon Labonte, in the mortgage action.

The court granted both motions, finding that the default judgments were irregularly obtained and should be set aside as of right without imposing terms.

The court also found that consolidation was appropriate given the interwoven issues and common questions of fact and law stemming from the same share purchase agreement, promoting judicial efficiency and avoiding multiplicity of proceedings.

The respondent moved to adjourn a trial in a mobility case, which the applicant opposed.

The motion was based on the Office of the Children's Lawyer (OCL) being unable to complete its report by a court-ordered deadline, which had effectively vacated the OCL's involvement.

The court denied the adjournment, emphasizing the importance of adhering to procedural orders, the vacating of the OCL order due to non-compliance with the deadline, and the need for timely adjudication in the child's best interests given limited judicial resources.

This addendum to a trial judgment addresses unresolved parenting time arrangements for two young children following the mother's approved relocation from Marathon to Espanola, ON.

The court considered the father's request for a weekly monthly schedule and the mother's proposal for a 4-5 day monthly schedule, balancing the children's need for frequent contact with the father against the challenges of long-distance travel and school attendance.

The court ordered a five-day monthly parenting schedule, to be arranged around statutory holidays or PD days to minimize missed school.

It also determined specific holiday parenting time, including summer and March Break, and clarified exchange locations and communication methods.

This appeal concerned a dispute over the purchase price of a property.

The appellant (vendor) claimed the agreed price was $80,000, while the respondent (purchaser) asserted it was $40,000, which he had already paid.

The trial judge found in favour of the purchaser, interpreting the Agreement of Purchase and Sale (APS) contextually.

The Court of Appeal dismissed the appeal, affirming the trial judge's contextual interpretation of the contract, consistent with the principles set out in Sattva Capital Corp. v. Creston Moly Corp., and deferring to the trial judge's findings of fact and assessment of evidence.

This endorsement addresses the costs of a prior motion where the respondent mother was entirely successful and "bested" her offer to settle.

The mother sought costs on a partial indemnity basis up to the offer date and full recovery thereafter.

The applicant father argued the claimed costs were unreasonable and disproportionate.

The court, exercising its discretion, declined to award full recovery costs despite the successful offer, finding the hours claimed by counsel excessive for the straightforward issues.

Costs were fixed on a partial indemnity basis at 65% of the mother's claimed amount, payable by the father.

The appellants, Robin and Jennifer Lacey, appealed a decision dismissing their application for declaratory relief and a Writ of Possession concerning a 99-year lease held by the respondent, Kakabeka Falls Flying Inc., over a portion of their property.

The appellants argued the lease violated the Planning Act.

The application judge found the lease commenced prior to May 2, 1968, thus exempting it from the Planning Act's subdivision prohibition, and that the appellants' claim was statute-barred under the Limitations Act, 2002.

The Court of Appeal upheld these findings, dismissing the appeal and awarding costs to the respondent.

The moving party appealed a previous order vesting title of his real estate to the respondent estate and sought a stay of any sale of the property pending the appeal.

The parties consented to a stay until June 15, 2023, but disagreed on whether it should continue until the appeal's disposition if no decision was made by that date.

Applying the three-part test for an injunction, the court found a serious issue to be tried, potential irreparable harm if the property was sold, and that the balance of convenience favoured the moving party.

The court ordered the stay to continue until the disposition of the appeal.

This motion concerned an application for security for costs on appeal, brought by the respondent (Gauthier Estate) against the appellant (White) pursuant to Rule 61.06 of the Rules of Civil Procedure.

The underlying appeal stemmed from a dispute over a real estate agreement of purchase and sale.

The moving party argued for security based on the appeal being frivolous/vexatious, an unpaid costs order, and low prospects of success coupled with difficulty in collecting costs.

The court found the appeal was not frivolous/vexatious and the paid costs order was insufficient on its own.

However, the court granted the motion, finding a low prospect of success on appeal and compelling evidence that it would be nearly impossible to collect costs from the appellant, citing his illiquid assets and history of non-payment of prior costs and mortgage obligations.

Security for costs was ordered in the amount of $15,000, and the appeal was stayed until payment.

The applicant brought a motion to dismiss the respondent's appeal for delay, and the respondent brought a cross-motion to extend the time to perfect her appeal.

The respondent was appealing a summary judgment order that found the child in need of protection, placed the child in extended society care, and denied her access.

The court applied the test for extending time to perfect an appeal and found that the respondent provided no explanation for the delay, there was prejudice to the child in further delay, and the evidentiary record supported the motion judge's conclusions.

The respondent's motion to extend time was dismissed, and the applicant's motion to dismiss the appeal for delay was granted.

The applicant wife and respondent husband separated after 18 years of cohabitation and marriage, entering into a separation agreement in 2015 that provided for spousal support of $10,000 per month.

The husband ceased payments in April 2019 and brought a motion to vary or terminate spousal support, citing voluntary retirement due to perceived health issues and changes in medical practice.

The wife opposed the motion, asserting her continued entitlement to support.

The court dismissed the husband's motion, finding that his voluntary retirement was not a material change in circumstances warranting a variation, and that he retained the capacity to work.

The court ordered spousal support to continue as per the original separation agreement.

The father sought to change the children's primary residence from Thunder Bay to London, Ontario, and sought sole custody, alleging the mother had mental health issues and failed to address the children's special needs.

The mother opposed the relocation and sought to retain primary care and decision-making.

The court found the mother was the primary parent and the children's status quo was with her.

Applying the Children's Law Reform Act and common law principles, the court determined that the father failed to demonstrate a material change in circumstances or that the relocation was in the children's best interests, noting his history of undermining the mother and his own move from Thunder Bay.

The court dismissed the father's request for relocation and granted the mother sole decision-making authority and primary residence, with specified parenting time for the father and an order for child support arrears and ongoing support.

This decision addresses cross-motions for temporary relief in a family law matter concerning an eight-year-old child.

The mother sought sole decision-making and child support, while the father sought joint decision-making, a residence restriction, and increased parenting time.

The court ordered the father to pay child support based on his income, disallowing a deduction for prior support obligations for the temporary order.

Joint decision-making was granted, and the existing parenting schedule was maintained, denying the father's request for more frequent weekend time.

The mother consented to the residence restriction.

This case involved a dispute over a real estate transaction where the plaintiff sought specific performance and the defendant counterclaimed for breach of contract and conversion of a trailer.

The parties had an informal agreement for the sale of property for $40,000, which the plaintiff paid in installments and began renovations.

The transaction failed to close due to the defendant's later assertion that the price was $80,000, influenced by an unexpected mortgage amount.

The court found the defendant's claim of an $80,000 purchase price incredible and dismissed the counterclaim regarding the trailer due to insufficient evidence.

The court ordered specific performance, vesting title in the plaintiff.

The applicants, Robin and Jennifer Lacey, brought an application seeking declarations that a 1968 lease held by Kakabeka Falls Flying Inc. (KFFI) was void ab initio due to contravention of the Planning Act, and sought mandatory orders for possession of the land.

KFFI argued the claims were statute-barred by the Limitations Act, barred by laches, and that the lease was valid due to part performance and proprietary estoppel.

The court found the applicants' claims (except for property taxes) were statute-barred as they had knowledge of their claim in 2010 but did not commence the application until 2017, and they sought consequential relief, negating the no-limitation period for declarations.

The court also found the claims barred by laches due to the applicants' delay and acquiescence (accepting rent).

Furthermore, the court found persuasive evidence of an oral lease and part performance prior to the Planning Act changes, and that proprietary estoppel applied given the applicants' knowledge of the lease upon purchase and their acceptance of rent.

The application for declaration and possession was dismissed, and the discrete issue of property taxes was converted to an action to proceed to trial.

The appellant, Jo-Ann Bodnar, appealed a summary judgment order in favour of the respondent, the Estate of Peter Boban, concerning an outstanding mortgage.

The motion judge found no triable issue regarding the interest rate or the application of part performance or promissory estoppel.

On appeal, the appellant did not challenge the interest rate finding but argued that the respondent had agreed to limit its remedies to foreclosure based on a 1996 mortgage action and subsequent consents.

The Court of Appeal found no evidence to support this claim.

The appellant also raised new arguments regarding issue estoppel, cause of action estoppel, abuse of process, and laches, which were not pleaded or argued below.

The court refused leave to raise these new arguments as no reasonable explanation was provided for their late introduction and the respondent would be prejudiced.

The appeal was dismissed.

The court determined costs following motions in related family and civil actions.

The applicant in the family action sought full recovery costs, alleging bad faith by the respondent in failing to honour settlement minutes.

The court found the respondent's conduct unreasonable but not amounting to bad faith, awarding partial costs.

In the civil action, the plaintiffs sought costs against the respondent's lawyer personally under Rule 57.07.

The court declined to order costs against the lawyer personally, finding it was not one of the clearest cases, but awarded partial indemnity costs against the respondent.