Mikesh H. Patel

The moving party brought a motion to extend the time for leave to appeal an interim interlocutory order and a motion for leave to appeal that order.

The Divisional Court granted the extension of time but dismissed the motion for leave to appeal.

No costs were ordered.

The moving party sought an extension of time to file a notice of appeal from an order setting aside a property transfer and granting a vesting order to the bankruptcy trustee.

The motion judge applied the interests-of-justice test, finding that while the moving party formed an intention to appeal within the appeal period and the initial delay was understandable, the four-month delay in bringing the motion was unexplained and prejudicial to the bankrupt estate.

The proposed grounds of appeal were found to be entirely lacking in merit, as the claims of unfair deprivation of a witness were unsupported and the evidence sought to be relied upon did not qualify as fresh evidence.

The extension of time was denied and costs were awarded to the responding party.

The appellant appealed a Small Claims Court decision in which the deputy judge awarded the respondent contractor $18,813.37 for flooring installation work.

The appellant had refused to pay the balance of the invoice, alleging defective work, and hired another contractor to remedy the problems.

The Divisional Court found that the deputy judge erred in law by deciding the case primarily on the basis of unjust enrichment, a legal doctrine that had not been pleaded or argued by the parties.

The court held that unjust enrichment was irrelevant to the central contractual issue of whether the contractor had fulfilled its obligations regarding the quality of the work performed.

The appeal was allowed, the decision was set aside, and a new trial was ordered.

The Trustee sought to set aside a transfer of property from Kaldep Singh Gidda to Sunita Rani Saini as a transfer at undervalue under section 96(1)(b) of the Bankruptcy and Insolvency Act, or alternatively under the Fraudulent Conveyances Act.

The court found that the transfer occurred within one year of bankruptcy, between non-arm’s length parties, and for no consideration.

The court rejected Ms. Saini’s defences of resulting or constructive trust, finding no evidence of a trust, loan, or gift, and held that her payments for mortgage and expenses did not create an equitable interest.

The Trustee was successful and awarded costs.

The appellants, Dorinda Nana Afriyie and Adusei Kwame, appealed the dismissal of their motion to set aside a default judgment and writ of possession in a mortgage action brought by Rume Ezomo.

The Court of Appeal found no error in the motion judge’s application of the criteria for setting aside a default judgment, as set out in Mountain View Farms Ltd. v. McQueen.

The court held that the motion judge properly considered the relevant factors, including promptness, explanation for default, arguable defence, prejudice, and the integrity of the administration of justice.

The appeal was dismissed, and costs were awarded to the respondent.

The applicant mother brought an urgent motion seeking to temporarily relocate with the children to St. Julian’s, Malta, and for ancillary orders for primary residence and sole decision-making.

The respondent father opposed the relocation, citing concerns about the children's cultural, linguistic, religious, and stability needs, as well as his limited ability to share parenting time post-relocation.

The court granted the mother's motion, finding it in the children's best interests to allow the temporary relocation, primary residence, and sole decision-making to the mother until trial.

The decision also established a graduated in-person parenting schedule for the father, with the mother responsible for travel costs, and liberal daily video contact.

The moving party brought a motion for leave to appeal an order dated November 17, 2022.

The Divisional Court dismissed the motion for leave to appeal.

No costs were awarded because the responding party failed to file a Costs Outline.

The applicant sought a review of his detention order under s. 520 of the Criminal Code.

He had an extensive criminal record and was facing serious drug and weapons charges, some of which were incurred while on release.

The applicant proposed a new surety and GPS monitoring as a change in circumstances.

The court found the proposed surety lacked sufficient knowledge and influence over the applicant, and the evidence regarding GPS monitoring was inadequate.

The application was dismissed on the secondary ground due to the high risk of reoffence.

The applicant mother sought sole decision-making responsibility and child support, while the respondent father sought joint decision-making and shared parenting time.

The court found the father's evidence inconsistent and uncorroborated, noting his history of family violence, breaches of court orders, and false allegations of abuse.

The court granted the mother sole decision-making responsibility, adopted her detailed parenting schedule, and imputed income to the father for child support, ordering retroactive payments.

This is a costs endorsement following a motion where the applicant mother sought to restrict the respondent father's parenting time due to his unvaccinated status and non-compliance with COVID-19 protocols.

The court found the mother to be the more successful party, having significantly reduced the father's parenting time and imposed safety measures.

Despite the mother's offer to settle not meeting the strict requirements for full indemnity costs, the court awarded partial costs, finding the father's conduct unreasonable for not making an offer and failing to address safety concerns.

The court considered the father's modest income in setting a payment schedule.

The applicant mother brought a motion to change the respondent father's temporary parenting time from in-person to virtual because he was unvaccinated and not following COVID-19 health protocols.

The court found the father's refusal to vaccinate and his conflict with daycare staff over masking constituted a material change in circumstances affecting the children's physical safety.

The court reduced the father's in-person parenting time to 2.5 hours per week subject to strict masking and vaccination conditions for other adults present, and ordered daily virtual parenting time.