Michel Z. Charbonneau

Following the parties’ separation and a jointly requested divorce, the remaining dispute concerned child support and extraordinary expenses for two children.

The court considered whether income should be imputed to the payor father above amounts shown in his tax returns and whether a separation agreement clause fixing a minimum child support amount regardless of income was enforceable.

The court found the clause unreasonable and of no force because it required payment even if income fell to zero.

The court declined to impute higher income, relying instead on tax records to determine guideline income.

Child support was set according to the father’s actual income, retroactive adjustment was limited, and the father was ordered to contribute a proportionate share of extraordinary expenses.

Child protection motion concerning whether an individual previously declared the father of a child should be removed as a party after DNA testing established he was not the biological father.

The child protection agency sought to revoke the prior declaration of paternity and strike the individual from the proceeding under the Rules of Civil Procedure.

Although the court accepted that the individual was not the biological father, it held he had been granted and exercised access to the child and therefore qualified as a “parent” within the meaning of s. 37(1)(e) of the Child and Family Services Act.

The evidence did not demonstrate that removing him from the proceeding would serve the child’s best interests or that any prejudice would arise from his continued participation.

The motion to strike him as a party was therefore dismissed.

Following a successful motion in a family law proceeding, the court determined the issue of costs.

Applying the presumption under paragraph 24(1) of the Rules, the successful party was entitled to costs.

However, the court considered the responding party’s good faith and modest financial resources, as well as the potential impact of a costs award on the welfare of the child.

Costs were therefore reduced and structured as modest monthly payments.

Costs endorsement following a motion in which the applicant was entirely successful.

The court found the motion brought by the responding parties to be ill-advised and held that the successful party was entitled to substantial indemnity costs.

The court ordered one of the respondents to pay the applicant $4,000 in costs on an all‑inclusive basis within 30 days.

Costs decision arising from family law disclosure motions related to the valuation of corporations owned by the respondent spouse.

The applicant brought motions seeking contempt and an order requiring business valuations after the respondent failed to respond within the seven-day timeline set out in a prior disclosure order.

The court found that the respondent took a position inconsistent with the order and deliberately delayed the proceedings by failing to provide a timely response.

Although the contempt motion itself was unnecessary, the applicant was justified in bringing the motions to resolve the issue of corporate valuations.

The court awarded substantial indemnity costs to the applicant.

The applicants sought an injunction to enforce a restrictive covenant in a settlement agreement arising from earlier patent litigation.

They alleged the respondent breached the covenant by inducing others in Canada to manufacture and sell the patented products outside Canada.

The court held the covenant unambiguously prohibited making, constructing, using, or selling the products in Canada, or inducing others to do those acts in Canada.

It rejected the broader interpretation that would prohibit inducing others in Canada to deal with the products anywhere in the world.

Finding no evidence that the products were made, used, or sold in Canada, the court concluded the respondent did not breach the agreement.

In a family law proceeding, the moving party sought leave to withdraw a previously filed notice of withdrawal and to schedule a new settlement conference.

The notice of withdrawal had been filed after repeated failures to comply with court-ordered financial disclosure.

The court found the explanations for non-disclosure not credible and concluded the withdrawal had been used as a tactical maneuver to delay proceedings.

Given the repeated non-compliance, unpaid costs, and lack of evidence supporting the requested custody relief, the motion was dismissed.

The responding party was permitted to proceed with the matter by way of an uncontested trial.

The defendant bank brought a motion to strike the plaintiff’s statement of claim for failing to disclose a reasonable cause of action.

The self‑represented plaintiff alleged fraud, deceit, emotional distress, and sought substantial punitive damages arising from NSF charges and monthly account fees imposed by the bank.

The court held that the pleading contained no material facts capable of supporting claims of fraud or intentional infliction of mental suffering and consisted largely of unsupported conclusions and allegations.

Applying the principles governing scandalous, frivolous, or vexatious pleadings, the court found it plain and obvious the action had no merit.

The statement of claim was struck without leave to amend and the action dismissed.

The appellant appealed both conviction and sentence for assault contrary to s. 266 of the Criminal Code following a physical confrontation arising from an attempt to remove a disputed vehicle from the complainant’s possession.

The appellant argued the trial judge’s reasons were insufficient and unclear as to whether the conviction relied on the “deemed assault” provision in s. 38(2) or on findings arising from a physical struggle.

The appeal court held the reasons were adequate and demonstrated that the conviction rested on findings that the accused intentionally applied force without consent after deliberately provoking a confrontation.

The court further confirmed that even a person claiming property rights cannot use force to recover chattels where doing so breaches the peace.

The sentence of a suspended sentence with 18 months’ probation was also upheld as not demonstrably unfit.

A trustee brought a motion for security for costs under Rule 56.01 against a beneficiary who had commenced an application seeking to compel the trustee to pass accounts and to challenge an arrangement permitting occupation of trust property rent‑free.

The moving party argued the beneficiary resided outside Ontario and lacked sufficient assets to satisfy a potential costs award.

The court held that the underlying proceeding formed part of the beneficiaries’ right to require a trustee to account for the administration of the trust.

The court also noted that other beneficiaries, represented by the Children’s Lawyer, had interests in the proceedings and that the objections raised regarding trust disbursements were not frivolous.

In these circumstances, security for costs was not appropriate.

The plaintiff brought a motion seeking certification of a proposed class proceeding against one defendant for settlement purposes.

The claim alleged a conspiracy to raise, maintain, fix, or stabilize gasoline prices in Eastern Ontario contrary to the Competition Act and the common law.

The court held that the pleadings disclosed viable causes of action, the proposed class definition was objectively ascertainable, and the existence of the alleged conspiracy constituted a common issue suitable for class determination.

The court further found that the representative plaintiff adequately represented the class and that the proposed settlement agreement contained a workable litigation plan including opt‑out procedures and notice provisions.

Certification for settlement purposes was granted as against the settling defendant.

The accused was charged under the Crimes Against Humanity and War Crimes Act with genocide and crimes against humanity for allegedly participating in the 1994 Rwandan genocide by intentionally killing Tutsis during attacks in the Kibuye region.

Numerous witnesses described massacres at Mugonero hospital and subsequent attacks in Gitwe, Murambi, and Bisesero.

The Crown relied on both direct eyewitness testimony and circumstantial evidence that the accused joined groups of attackers.

The court found serious credibility issues in several key Crown witnesses, including evidence that some allegations had been fabricated or exaggerated after investigators revealed the accused as the target of an investigation.

Given inconsistencies, unreliable identifications, and lack of corroboration, the court held the Crown failed to prove beyond a reasonable doubt that the accused participated in the killings or materially assisted the attacks.

The moving party brought a motion in a family law proceeding seeking to add a closely held corporation as a respondent, amend the pleadings, ratify service on the corporation, and obtain related procedural relief.

The responding party opposed the addition of the corporation, arguing the corporate shares were excluded property under the Family Law Act and that the corporation had no legal interest in the litigation.

The court held that the alleged excluded property status had not yet been proven and that the corporation could be substantially affected by the final judgment.

The court therefore granted the motion to add the corporation and to amend the pleadings, ratified service, and refused the responding party’s request to adjourn and proceed with a child support motion due to delays and failure to provide financial disclosure.

Child protection proceedings in which a children's aid society brought a motion for summary judgment declaring several children in need of protection and seeking their return to the mother under a supervision order.

The evidence demonstrated extensive past concerns including exposure to domestic violence, substance abuse, neglect of medical and hygiene needs, and inappropriate discipline.

The mother consented to a finding of protection and supervision, while another responding party opposed the motion and requested a trial or placement of one child in his care.

The court held that the evidence overwhelmingly established the children were in need of protection and that no genuine issue requiring a trial existed.

Applying the statutory requirement to consider the least disruptive measures, the court ordered the children returned to the mother under supervision.

The Crown appealed a summary conviction acquittal on charges of impaired driving and refusal to provide a breath sample.

The appeal court held that the trial judge applied the wrong legal standard when assessing whether the police officer had reasonable grounds to demand a roadside screening test, requiring proof of probable impairment rather than a reasonable suspicion that alcohol was present in the accused’s body.

The court also found legal errors in the trial judge’s failure to provide reasons for excluding evidence under s. 24(2) of the Charter and in dismissing the impaired driving charge without permitting Crown submissions.

Given that the trial judge had already made final determinations on key issues, the matter could not be meaningfully remitted to complete the trial.

The acquittal was set aside and a new trial ordered.

The applicant father failed to appear at the family law trial.

The respondent mother sought sole custody of their four children, child support, supervised access for the father, a restraining order, and authorization to travel with the children without the father's consent.

The court heard evidence of the father's abusive behavior and attempts to manipulate the children.

The court granted all of the mother's requests, imputing an annual income of $16,000 to the father for the purpose of calculating child support.

The defendant brought a motion under Rule 19.08(2) of the Rules of Civil Procedure to set aside a default judgment obtained by the plaintiff in a breach of contract action.

The court considered whether the motion was brought without delay, whether the default was reasonably explained, and whether the defendant demonstrated a triable defence.

The defendant asserted he was unaware of the Superior Court action after being served with multiple documents and believed only a Small Claims Court action had been commenced.

The court accepted this explanation and found a potential defence regarding whether the contract permitted recovery of damages for loss of profits beyond specified contractual damages.

The default judgment was set aside and the defendant was permitted to defend, subject to reimbursing the plaintiff for costs thrown away in obtaining the judgment.

Both parties brought competing motions to change the child support provisions of a 2001 divorce order.

The applicant sought increased and retroactive child support based on the respondent’s increased income and requested contribution toward special expenses including orthodontics and competitive soccer.

The respondent sought termination or reduction of support due to unemployment.

The court found material changes in circumstances, attributed income reflecting severance and employment insurance, and varied support prospectively from the date of effective notice rather than the earlier period sought.

The court also determined that competitive soccer constituted a s.7 special expense and ordered a limited contribution.

The responding party in a family law proceeding brought a motion to change seeking to eliminate child and spousal support arrears arising from a separation agreement filed with the court.

The self-represented party allegedly failed to file a response affidavit, and submissions proceeded on the assumption that no responding evidence existed.

Upon reviewing the court file, the judge determined that the responding party had in fact filed a response in the underlying motion to change and that the motion before the court was a continuation of that proceeding.

Because the judge had previously presided over a settlement conference and because the hearing had proceeded on a mistaken factual premise regarding the evidence, the judge recused himself and directed that the motion be heard by another judge.

The successful plaintiff sought costs of the appeal in the amount of $5,428.74.

The defendant acknowledged the plaintiff's entitlement to costs but argued they should be fixed at $3,500.

The Divisional Court found the plaintiff's claim substantially justified and awarded costs fixed at $5,400 all-inclusive.