Michael Joseph Cupello

The City of Thunder Bay sought leave to appeal a decision dismissing its motion for summary judgment against Ian Bodnar.

The underlying dispute concerned the validity of a Rural Access Road permit.

The motion judge had found that res judicata (issue estoppel) and abuse of process did not apply, as the Ontario Municipal Board (OMB) lacked jurisdiction to determine permit validity and its comments were obiter dicta.

The court, applying Rule 62.02(4) of the Rules of Civil Procedure, denied leave to appeal, finding no conflicting decision and no good reason to doubt the correctness of the motion judge's decision, nor that the matter was of general public importance.

The City of Thunder Bay moved for summary judgment to dismiss Ian Bodnar's claim, arguing it was res judicata or an abuse of process.

The claim sought a declaration regarding the validity and extent of a 1996 rural access road permit.

The City contended that the Ontario Municipal Board (OMB) had already decided this issue.

The court dismissed the City's motion, finding that the OMB explicitly stated it lacked jurisdiction to determine the permit's validity.

Therefore, the OMB's comments on the permit were obiter dictum and not fundamental to its decision, preventing the application of issue estoppel or abuse of process.

A child protection application brought by the Children's Aid Society against the respondent mother was dismissed after a 10-day trial spread over four months.

The respondent sought costs on a substantial indemnity basis, alleging the Society acted unfairly by filing voluminous documents, failing to investigate fully, and advancing seven unproven statutory grounds.

The court found no exceptional circumstances warranting a costs award against the Society, concluding the Society acted appropriately within its statutory mandate, the grounds alleged were well-founded and consistently communicated, and the respondent's failure to address document admissibility prior to trial was not attributable to the Society's conduct.

The plaintiff brought a motion seeking production of a defence medical examination report and later sought costs after the report was produced following service of the motion.

The defendants argued the motion was unnecessary and that no order for a medical examination had been made under s. 105 of the Courts of Justice Act, rendering rule 33.06(2) inapplicable.

The court held that disclosure obligations could still arise under the broader document production rules and found the defendant failed to produce the report promptly after receiving it.

Although the motion was resolved prior to argument, it was reasonable for the moving party to have brought it.

Partial indemnity costs of $1,000 were awarded, reflecting both the defendant’s delay and the plaintiff’s own failure to comply with an earlier order to set the action down for trial.

The applicant brought a motion seeking child support and spousal support, while the respondent brought a motion seeking access to one of the children.

The respondent stood in the place of a parent to the applicant’s older child but argued that support should not be payable because the child’s biological father had a support obligation and because their relationship had broken down.

The court applied s. 5 of the Child Support Guidelines and held that, given the limited evidence regarding the biological father’s enforceable support obligation, the step-parent respondent should pay full guideline child support on an interim basis.

The court also awarded nominal interim spousal support based on the respondent’s limited ability to pay and adjusted the access schedule to maximize the child’s contact with the respondent while accommodating his work schedule.

Decision on costs following motions by two defendants seeking leave to appeal an interlocutory order permitting the plaintiff to examine a key witness before trial under Rule 36.01(2) of the Rules of Civil Procedure.

The defendants sought over $28,000 in partial indemnity costs after obtaining leave to appeal, arguing the motion involved complex jurisdictional questions and issues of broader importance.

The plaintiff argued the claimed hours and duplication of work by multiple counsel were excessive and that success on the motion was partially divided.

Applying the discretionary framework under s. 131 of the Courts of Justice Act and Rule 57.01, the court held the claimed costs were excessive for a short motion and reduced the award significantly.

The court fixed costs of $3,000 to each of the two successful defendants payable by the plaintiff.

The applicant brought a motion seeking an extension of an ex parte restraining order against her spouse under family law proceedings.

The order had temporarily prevented the respondent from attending the matrimonial home.

The respondent opposed the extension and alleged the motion was intended to remove him from the home rather than address safety concerns.

The court found the alleged threats constituted verbal conflict within a volatile marital relationship but were unlikely to result in violence given the parties’ history and absence of prior violence.

The court concluded there was insufficient justification to continue the restraining order.

Parents appealed orders arising from a child protection proceeding in which the children were made Crown wards on a motion for summary judgment.

The mother appealed the denial of a trial regarding her claim for access, arguing procedural unfairness and inconsistent endorsements in the record.

The father appealed the Crown wardship order, alleging procedural unfairness, denial of cross‑examination, and improper reliance on delay and outstanding criminal charges.

The court held that natural justice required that the mother be granted a hearing on the issue of access, particularly given conflicting decisions in the record and questions surrounding the circumstances of her lack of contact with the children.

However, the father failed to demonstrate a palpable and overriding error in the wardship decision, and his appeal was dismissed.

The plaintiff brought a motion under Rule 36 of the Rules of Civil Procedure seeking leave to examine a former defendant and corporate executive before trial.

The witness had relocated outside Canada and the plaintiff argued the examination was necessary to preserve potentially crucial evidence regarding the hiring of a defendant.

The defendants opposed the motion, arguing that witnesses should generally testify at trial, particularly before a jury, and that alternative mechanisms such as letters rogatory were available.

The court held that Rule 36 was designed for circumstances where a witness may be outside the jurisdiction and could possess important evidence.

Leave was granted to conduct a pre‑trial examination of the witness, with the examination to be videotaped and undertakings completed beforehand.

The applicant brought a motion for interim child and spousal support following separation.

The primary dispute concerned the income to be imputed to the respondent, who controlled a jointly owned Tim Horton's franchise.

The respondent argued income should be set at $120,000 based on a projected available cash analysis, while the applicant relied on the respondent’s sworn financial statement showing income of approximately $169,000.

The court found the projection unreliable due to unsupported assumptions and incomplete financial disclosure, including the absence of updated financial statements and corporate records.

Income of $169,000 was imputed to the respondent, resulting in guideline child support for three children and spousal support within the advisory range.

Application concerning entitlement to proceeds of a life insurance policy where the insured had first designated a sibling as revocable beneficiary and later designated a spouse and child in a will.

The will was subsequently revoked by operation of law upon the insured’s later marriage.

The court held that the beneficiary designation contained in the will constituted a “declaration” under the Insurance Act that revoked the earlier designation.

When the will was later revoked by marriage, the revocation did not revive the earlier beneficiary designation, leaving no valid beneficiary designation in effect.

Accordingly, the proceeds of the life insurance policy were payable to the estate.

On an interim motion in a family law proceeding, the respondent father sought permission to relocate with the parties’ two‑year‑old child from Thunder Bay to Dryden after obtaining employment as an occasional teacher.

The mother opposed the move and sought to maintain the existing shared care arrangement pending trial.

Applying the principles from Gordon v. Goertz and interim mobility jurisprudence, the court held that a temporary relocation requires a pressing reason and must be assessed in light of the child’s best interests.

Given the equal caregiving arrangement, the absence of a custody determination, conflicting affidavit evidence, and the likelihood of trial within six months, the court found the father failed to establish a pressing need for relocation.

The relocation request and related relief were dismissed and the status quo parenting arrangement was maintained pending trial.

The appellant father appealed a child protection disposition order granting Crown wardship with no access regarding two children.

He argued the trial judge erred in fact by ignoring evidence that parental substance abuse and domestic violence had ceased and erred in law by placing undue emphasis on continuity of care under s. 37(3)7 of the Child and Family Services Act while failing to properly balance other statutory factors, including cultural identity considerations for Indigenous children under s. 37(4).

The court held that no palpable and overriding factual error or legal error was demonstrated and that the trial judge had properly considered the relevant statutory factors.

The court found that the evidence regarding the harm of disrupting the long‑term foster placement supported the disposition.

The appeal was dismissed and no costs were awarded.

Following a family law trial concerning entitlement to spousal support between former cohabitants, the court determined the successful party's entitlement to costs.

The applicant had sought over $12,500 in costs based on legal fees exceeding $22,000, but achieved only partial success at trial, obtaining a lump-sum spousal support award of $6,000.

Applying rule 24 of the Family Law Rules and s. 131 of the Courts of Justice Act, the court considered the presumption that a successful party receives costs, the proportionality between costs and the relief obtained, and the parties’ conduct during litigation.

The court also held that costs could not be awarded for earlier procedural steps where no costs were ordered at the time.

In the circumstances, the court fixed a fair and reasonable costs award significantly lower than claimed.