Nancy L. Backhouse

This family law trial involved a separated cohabiting couple with one child, addressing issues of custody, access, child and spousal support, and division of property.

The court found the respondent's financial disclosure inadequate and dishonest, imputing an income of $150,000/year to him.

The applicant was granted sole custody, with the respondent receiving specified access.

No spousal support was awarded as both parties were deemed self-supporting.

Child support was ordered at $1263/month plus $500/month for section 7 expenses, with 10 years of future support secured from the respondent's share of the notional proceeds from the sale of the jointly owned home, due to his history of non-compliance.

The jointly owned property was valued, and various adjustments were made to the parties' respective shares.

The applicant wife sought full indemnity costs following her success in the main judgment.

The court found the respondent's conduct, including entering a trust declaration and registering a second mortgage to defeat the applicant's claims, constituted bad faith under Rule 24(9) of the Family Law Rules.

Applying the factors under Rule 24(11), the court determined that full recovery costs were warranted.

Considering the importance and complexity of the application, the parties' reasonable and unreasonable behaviours, counsel rates, time spent, and disbursements, the court awarded the applicant $60,000 in costs, deeming it reasonable and proportionate.

The parents appealed a trial judge's final order making their child a Crown Ward with no access under the Child and Family Services Act.

The appeal grounds included allegations of judicial bias, usurpation of the trier of fact's role by an expert, exclusion of evidence, and failure to consider the child's return to the mother.

The appellate court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusions.

The court upheld the reliance on expert evidence regarding long-term neglect and the mother's inability to cooperate with supervision, which rendered continued access detrimental to the child's best interests and permanency planning.

The applicant sought an equalization payment, challenging the beneficial ownership of a condominium property registered in the respondent's name and a second mortgage against it.

The court found the trust declaration and second mortgage, purportedly in favour of the respondent's father, to be shams designed to defeat the applicant's entitlement to the matrimonial home.

The court concluded that the respondent was the beneficial owner of the property and awarded the applicant an equalization payment of $100,500, securing it with a charge on the property.

The accused was charged with sexual assault and sexual assault of a person under 14 based on alleged incidents occurring in the early 1990s within a crowded family household.

The complainant identified the accused primarily through voice recognition and described several nighttime incidents.

The court found the identification evidence weak and noted significant inconsistencies between the complainant’s initial report to police and later sworn testimony.

Applying the framework from R. v. W.D., the court concluded that the accused’s denial was credible and that the evidence raised a reasonable doubt as to guilt.

The accused was acquitted on both counts.

Following a long-term marriage, the parties disputed the date of separation, equalization of net family property, excluded property claims relating to Iranian assets, and entitlement to spousal support.

The court rejected the husband's asserted earlier separation date and found the parties separated when the husband moved out in 2010.

Several of the husband's claims to exclude inherited or traced assets were rejected due to insufficient documentary evidence and credibility concerns.

The court also addressed the sale of a jointly owned Iranian property without notice to the wife and granted a set-off reflecting her interest.

Equalization was ordered in favour of the wife and ongoing spousal support awarded.

The moving party sought to vary a 2006 consent order by terminating spousal support and reducing child support based on an alleged decrease in income following job loss.

The court found the moving party had not made bona fide efforts to obtain comparable employment and imputed income of $75,000 to him.

Income of $20,000 for 2013 and $55,000 thereafter was attributed to the responding party, taking into account health challenges, delayed career establishment, and primary caregiving responsibilities.

Spousal support was reduced for 2013 and then converted to a nominal order of $1 annually until December 31, 2018 to allow potential future variation.

Child support was recalculated based on the imputed income and the child’s university attendance, with additional contributions ordered toward post‑secondary expenses.

The moving party sought a reduction of substantial spousal support arrears and a decrease in ongoing support obligations following a long-term marriage.

He relied on fluctuating income, health issues, and employment changes as a material change in circumstances and proposed reduced arrears and lower monthly support.

The responding party opposed the motion, citing the moving party’s history of non-disclosure, failure to comply with court orders including life insurance and medical coverage, and prior unsuccessful variation attempts.

The court found no material change in circumstances and determined that rescinding arrears would be unjust given the moving party’s repeated non‑compliance.

The motion to reduce arrears and ongoing support was dismissed.

The applicant father sought to vary a prior custody order under s. 17 of the Divorce Act to obtain sole custody of the parties’ child, relying heavily on an Office of the Children’s Lawyer report recommending a transfer of custody.

The court found the OCL report unreliable because key witnesses were not properly interviewed with interpreters and relevant medical and daycare information was not considered.

Evidence showed the child was thriving in the respondent mother’s care and that allegations of medical neglect and safety concerns involving the mother’s friend were unsupported by the evidence and prior investigations.

The court also found the father not credible and concluded that no material change in circumstances had been established within the meaning of s. 17(5) of the Divorce Act.

Even if a material change had been proven, transferring custody would not have been in the child’s best interests.

The applicant sought temporary spousal support following a long-term marriage and the sale of the parties’ shared corporate interests in a real estate development business.

The respondent argued that support should not be ordered due to the applicant’s capital assets, alleged cohabitation with a wealthy partner, and claims that the corporate buyout constituted advance income that would create double recovery.

The court found that the parties were not in equal financial positions post-separation and rejected the argument that the applicant should rely on her partner or exhaust capital.

Pending trial and despite incomplete financial disclosure, the court fixed temporary incomes and applied the Spousal Support Advisory Guidelines to determine interim support.

Temporary spousal support of $10,000 per month was ordered retroactive to September 2013, with earlier retroactive support left for determination at trial.

The plaintiff franchisor brought a motion for an interim injunction to enforce restrictive covenants contained in a terminated franchise agreement.

The agreement prohibited the franchisee and its principal from operating a competing pet supply business within a specified geographic radius and from soliciting employees following termination.

Evidence showed that a competing store was opened nearby through a newly incorporated company associated with the franchisee’s spouse and that the former franchisee remained involved in its operations.

The court found a prima facie breach of the non‑competition, non‑solicitation, and post‑termination obligations, concluding that the new corporation was used to conceal the franchisee’s continued participation.

The court held that where a clear breach of a negative covenant in a franchise agreement is established, proof of irreparable harm and balance of convenience is not required, though the evidence would have satisfied those elements in any event.

The applicant sought a declaration under s. 178(1)(d) of the Bankruptcy and Insolvency Act that a prior judgment debt for breach of trust arising from construction trust funds was not released by the respondent’s bankruptcy discharge.

The respondent argued the original judgment was improperly obtained and that there was no evidence of wrongdoing sufficient to bring the debt within the statutory exception.

The court rejected the procedural challenge, finding the respondent had been properly served and had participated in the earlier proceeding.

Reviewing the evidentiary record, the court held the respondent failed to account for trust funds impressed under the Construction Lien Act and lacked credibility in denying involvement.

The failure to account for the trust funds constituted wrongdoing sufficient to trigger the s. 178(1)(d) exception.

The applicant sought a writ of mandamus compelling an electricity distributor to deliver electricity usage bills by courier and to refrain from alleged intimidation and criminal conduct.

The court considered the statutory framework governing electricity distribution, including the Distribution System Code issued under the Ontario Energy Board Act, which provides that bills may be issued by mail or electronically with customer consent.

The court held that the term “mail” in the Code refers to the ordinary postal system and does not include courier delivery.

The applicant’s personal dispute with Canada Post did not alter the distributor’s statutory obligations.

The court further found no evidentiary basis to order the respondent to refrain from alleged intimidation or threats.

Four accused were jointly charged with offences relating to a loaded firearm discovered in a vehicle in which they were occupants.

Two accused faced additional counts of transporting, possessing, and controlling the firearm and related ammunition offences.

After the Crown closed its case, all accused sought directed verdicts of acquittal on the basis that the Crown had failed to establish a prima facie case of knowledge or control of the firearm.

The court held that mere presence in a vehicle containing a firearm, coupled with nervous behaviour and seat movements, was insufficient to establish knowledge or control beyond a reasonable doubt, particularly where another unidentified occupant fled the vehicle from the seat where the firearm was located.

Concluding that the circumstantial evidence could not permit a properly instructed jury to find guilt beyond a reasonable doubt, the court granted directed verdicts and acquitted all accused.

The moving party sought disclosure of a full document from which excerpts had been included in an affidavit used to obtain a search warrant.

The responding party argued disclosure was irrelevant, that no Charter breach had an air of reality, and that disclosure risked harm.

The court held that where a party relies on portions of a document to obtain a warrant, the opposing party is entitled to inspect the entire document under the best evidence rule and ordinary civil procedure principles.

A party cannot selectively disclose favourable excerpts while withholding the remainder.

The court ordered production of the full document.

The accused was charged with possession of cocaine for the purpose of trafficking and possession of property obtained by crime after police observed him discard a package containing crack cocaine while fleeing.

The central issue was whether the accused possessed the drugs and whether cash found on him was proceeds of crime.

The court accepted the police officer’s evidence that he saw the accused drop the package and later recovered it from a garden below the porch.

The accused’s explanation regarding the origin of the cash and his possession of two cellphones was rejected as not credible.

The court concluded that the Crown proved beyond a reasonable doubt that the accused possessed cocaine for the purpose of trafficking and possessed cash obtained through trafficking.

The accused was charged with multiple offences arising from a police pursuit while driving a stolen vehicle.

He pleaded guilty to failing to stop for police, dangerous driving causing bodily harm, and possession of property obtained by crime.

The remaining issues at trial were whether the accused committed aggravated assault or assault causing bodily harm against a police officer by accelerating his vehicle toward the officer while attempting to flee.

The court rejected the accused’s evidence, accepted the testimony of the officer and civilian witnesses, and found that the accused intentionally accelerated toward the officer to force him out of the way.

This conduct constituted a threat to apply force with a motor vehicle that endangered the officer’s life and satisfied the elements of aggravated assault.

A young person was charged with aggravated assault arising from a violent attack at a restaurant that resulted in the complainant losing an eye.

The prosecution relied primarily on identification evidence, including surveillance video and testimony from a school resource officer who believed he recognized the accused in the footage.

The court found the officer’s identification evidence was tainted because he knew the accused was a suspect before viewing the video and the features relied upon were generic.

Other witnesses either failed to identify the accused or provided inconsistent descriptions, and the surveillance footage was of poor quality.

The court concluded that the identification evidence was unreliable and did not establish the accused’s identity beyond a reasonable doubt.

The accused applied to quash a telewarrant and exclude evidence obtained during the execution of a search warrant relating to firearm and drug offences.

The challenge argued that the Information to Obtain relied too heavily on a confidential informer, contained careless drafting errors, and failed to establish reasonable and probable grounds.

Applying the principles from Garofoli and Debot, the court assessed the reliability of the informant’s tip, the credibility of the source, and the extent of police corroboration.

The court found the informer’s information detailed and credible, supported by prior reliability and partial police corroboration through database checks and surveillance.

Despite drafting errors in the ITO, the totality of the circumstances provided a sufficient evidentiary foundation for the issuing justice to grant the warrant.

The accused applied under s.24(2) of the Charter to exclude a firearm and ammunition discovered during a vehicle search following a traffic stop.

Police officers claimed the stop was justified by observing the accused using a cellphone while driving and that the vehicle was searched as an inventory search prior to impoundment.

The court found, on a balance of probabilities, that the officers were untruthful about observing cellphone use and that the stated justification for the stop was fabricated.

This rendered the detention arbitrary under s.9 of the Charter.

Given the deliberate police misconduct, admission of the evidence would bring the administration of justice into disrepute, and the firearm and ammunition were excluded.