Michael N. Varpio

In a family support motion brought pending an appeal from an adjournment order, the moving party sought suspension of support payments or payment into a holding account until the validity of a separation agreement could be determined.

The court held that Rule 38(25) of the Family Law Rules is procedural only and does not confer substantive authority to grant that relief.

The court further held that the requested remedy exceeded what could properly follow even if the appeal from the adjournment were successful.

The motion was dismissed, with brief written costs submissions invited.

Following a short marriage with no children, the court determined property equalization and a spousal support claim arising from a matrimonial home that had been sold under power of sale with a substantial mortgage shortfall.

Applying the Family Law Act net family property regime, the court found the ordinary equalization calculation would require a payment of $22,500, but held that result would be unconscionable given the short marriage, unvalued assets, the parties' shared treatment of the home as a joint venture, and the debt circumstances.

The equalization payment was reduced to $7,500 and made payable over 36 months.

The spousal support claim was dismissed because the marriage was brief, no compensable economic disadvantage arising from the marriage was shown, and the claimant had declined available employment.

No costs were awarded.

On a contempt motion arising from long-running estate litigation, the court held that the respondent was in contempt of a final settlement order by commencing New York litigation seeking relief duplicative of, and inconsistent with, matters reserved to the Ontario case-management judge.

Applying the civil contempt test, the court found the prior order, read in its full context and spirit, clearly required further formal orders flowing from the minutes of settlement to be remitted to the same judge.

The respondent deliberately commenced the foreign proceeding, and reliance on incorrect legal advice was no defence to liability, though potentially relevant to penalty.

Other alleged acts of obstruction and non-compliance were left unresolved because credibility findings would require viva voce evidence.

The defendant corporation moved to set aside a default judgment obtained after a damages hearing arising from the sale of allegedly faulty woodworking equipment.

The court applied the test under Rule 19.08 of the Rules of Civil Procedure requiring the moving party to explain the default, bring the motion without undue delay, and demonstrate a triable defence.

Although the defendant advanced an arguable defence, the court found the corporate principal knew of service of the statement of claim, delayed bringing the motion for strategic reasons, and provided unreliable affidavit evidence.

The court also found prejudice to the plaintiff due to the death of a key witness involved in the transaction.

Balancing the interests of justice, the motion to set aside the default judgment was dismissed.

The applicant brought a motion to sever a joint tenancy in a matrimonial home following separation and settlement of family law proceedings, and sought discharge of a creditor’s writ of execution registered against the property.

The court considered whether the parties’ conduct during matrimonial litigation constituted a course of dealing sufficient to sever the joint tenancy under the principles set out in Hansen Estate.

The court held that the parties’ actions demonstrated a mutual intention to treat their interests as tenants in common, thereby severing the joint tenancy.

Exercising equitable jurisdiction, the court further ordered that the creditor’s writ be discharged upon payment of $37,000 into court pending determination of entitlement among potential creditors.

The court found insufficient evidence that the creditor would be prejudiced by such an order.

Several First Nations accused sought disclosure of 2013 jury rolls in advance of a planned constitutional application alleging underrepresentation of Indigenous jurors in jury pools.

They argued the records were relevant to a forthcoming application under ss. 7, 11(d), and 11(e) of the Canadian Charter of Rights and Freedoms and to a potential s. 11(b) delay claim arising from the litigation of that issue.

The court held that the requested materials were governed by the third‑party disclosure framework from R. v. O'Connor because the records were held by a separate government entity rather than the prosecuting Crown.

Applying the likely relevance threshold, the court concluded the jury rolls could assist in determining whether delays associated with the application should be characterized as institutional delay or delay attributable to the accused.

Disclosure was therefore ordered subject to privacy undertakings.

The respondents sought costs following the dismissal of the applicant's judicial review application.

The respondents sought substantial indemnity costs, arguing the litigation was duplicative, vexatious, and involved unfounded allegations of bias.

The applicant argued for modest costs to accommodate access to justice.

The Divisional Court agreed with the respondents, finding the judicial review replicated previous litigation and was entirely unfounded.

The court awarded substantial indemnity costs of $15,000 to the Swan respondents and $8,088.46 to the University of Western Ontario.

The applicants sought judicial review of a decision by the Ontario Police Civilian Commission finding the applicant police officer guilty of insubordination.

The officer had failed to comply with an order from the Chief of Police, arguing that a portion of the order requesting tax information was unlawful.

The Divisional Court dismissed the application, holding that even if the tax information request was unlawful, the officer was still obliged to obey the remaining lawful aspects of the order, and his failure to do so constituted insubordination.

The Town of Oakville sought judicial review of an Ontario Municipal Board decision that permitted a temporary change of use for two commercial properties to be farmed, providing a tax benefit.

The temporary change expired before the hearing, and the respondents did not appear.

The Divisional Court declined to hear the application, finding the matter moot and noting that deciding a case with broad policy implications without adversarial submissions would breach procedural fairness.

The tenants appealed an order of the Landlord and Tenant Board terminating their tenancy and evicting them for committing an illegal act (breach of zoning by-law).

The Divisional Court found the Board erred by reversing the onus of proof regarding the zoning issue when there was no evidence the cabin was in the prohibited zone.

Furthermore, the Board erred in law by failing to dismiss the eviction application under s. 83(3) of the Residential Tenancies Act.

The court found the eviction application was brought because the tenants had successfully enforced their legal rights to resist an illegal rent increase, which mandates refusal of the eviction regardless of the landlord's good or bad faith.

The appeal was allowed and the eviction application dismissed.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision that dismissed her discrimination complaint against her university and an arbitrator.

The applicant alleged that the arbitrator's report, which found her harassment allegations unfounded, was discriminatory and that the arbitrator lost adjudicative immunity.

The Divisional Court dismissed the application, finding it to be a duplicative and meritless attempt to relitigate previous findings, and upheld the HRTO's conclusions on reasonable prospect and adjudicative immunity.

The appellant appealed a decision regarding child support and section 7 expenses for two disabled children.

The Divisional Court found the application judge erred in concluding the older child, who resided full-time in a care facility, had withdrawn from parental control and was not a child of the marriage.

The court also found the judge misapprehended the evidence regarding respite care subsidies for the younger child.

The matter was remitted to the application judge to recalculate the section 7 expenses and arrears.

The applicant First Nation challenged the passing of accounts for a community trust created to manage settlement funds, raising objections regarding real estate purchases, administrative expenses, accounting practices, record‑keeping, and trustee compensation.

The court reviewed the governing trust agreement and the statutory framework under the Trustees Act and Estates Act.

It held that trustees are judged by a good‑faith standard equivalent to that of an ordinarily prudent person managing their own affairs and that objections to a passing of accounts must be specific enough to permit meaningful response.

The court found the objections vague or unsupported, and noted the applicant did not allege fraud or seek repayment of funds.

The trustees were found to have acted in good faith and the accounts were passed in full.

The defendant estate brought a motion for summary judgment in a slip and fall action initiated by the deceased's personal care worker.

The plaintiff slipped on an icy driveway while caring for the deceased.

The defendant argued that the deceased lacked the mental capacity to be an 'occupier' under the Occupiers' Liability Act, that the plaintiff herself was the occupier, that any duty was fulfilled by hiring contractors, and that the plaintiff willingly assumed the risk.

The court dismissed the motion, finding that the evidentiary record, including conflicting evidence regarding the deceased's mental capacity and the plaintiff's responsibilities, did not permit a full appreciation of the facts necessary to grant summary judgment.

Addendum to a prior decision addressing an argument concerning the applicability of s. 25 of the Personal Property Security Act regarding security interests in proceeds.

The applicant argued that the respondent’s consent to franchise agreement transfers eliminated the priority of the respondent’s security interest over those agreements.

The court accepted that the respondent’s signature constituted consent to the transfers and that, under s. 25 of the PPSA, the respondent’s security interest would not have priority over the applicant’s with respect to the franchise agreements in evidence.

However, the court declined to extend the finding to franchise agreements not supported by evidence in the record.

The parties separated after a 22-year marriage.

The applicant sought an equalization of net family property and spousal support.

The respondent had declared bankruptcy post-separation.

The court held that the equalization claim was stayed by the Bankruptcy and Insolvency Act as the applicant had not obtained leave to lift the stay.

The court ordered the respondent to pay spousal support of $3,500 per month, reducing to $3,119 per month once the applicant was expected to be able to work and earn minimum wage.

The respondent was also ordered to maintain the applicant on his medical benefits and designate her as the beneficiary of 80% of his life insurance policies.

The plaintiff brought a motion for partial summary judgment to declare a related corporate defendant liable for a payment stream under a settlement agreement, and to declare her security interest had priority over the principal's personal PPSA registration.

The defendants brought a cross-motion to set aside prior ex parte orders enforcing the settlement.

The court granted the plaintiff's motion, finding the related company liable as a guarantor due to the transfer of franchise agreements, and held the principal's security lost priority for failing to register a financing change statement under s. 48 of the PPSA.

The defendants' cross-motion was dismissed as the settlement agreement clearly permitted multiple remedies upon default.

Following earlier reasons amending an order under the slip rule, the court addressed competing claims for costs.

The applicants sought partial indemnity costs after succeeding on the motion to correct the order, while the respondent sought substantial indemnity costs and personal costs against opposing counsel under Rule 57.01 and Rule 57.07.

The court declined to revisit the merits of the slip issue despite further submissions from the respondent.

Applying the principles governing personal costs against counsel, the court found the case did not meet the high threshold for such relief and that the respondent had largely been unsuccessful.

Given that the applicants’ counsel created the error necessitating the motion and contributed to unnecessary conflict, the court also declined to award costs in the applicants’ favour.

The applicants brought a motion under Rule 59.06(1) of the Rules of Civil Procedure seeking to amend a prior order on the basis that it contained an accidental slip.

The earlier order, which permitted payment of mortgage funds into court and directed a trial of issues, mistakenly referred to “other monies,” which the respondent argued entitled her to withdraw the full amount paid into court before trial.

The court found that the word “other” was a drafting error copied from an alternative draft order and did not reflect the manifest intention of the original judge.

The court held that the funds were intended to remain as security pending trial rather than an admission of liability.

The order was varied to remove the erroneous wording, the respondent’s cross‑motion was dismissed, and the respondent was permitted to withdraw only the undisputed portion of the mortgage debt.