Pamela L. Hebner

The applicant sought to vary an interim consent order that allowed the respondent to offset a $1.7 million loan against his ongoing child support obligations.

The Family Responsibility Office (FRO) refused to enforce the support orders because its system could not process the offset.

The court varied the order to delete the offset provision, holding that child support is the right of the child and cannot be bargained away or offset against debts between the parents, particularly regarding ongoing support.

On an appeal from the Consent and Capacity Board, the court considered whether a physician renewing a community treatment order had sufficient basis to conclude that the substitute decision-maker gave informed consent to the treatment plan.

The court held that, although direct physician communication with the substitute decision-maker is not statutorily required, the Board must still be satisfied that the information required by s. 11 of the Health Care Consent Act was provided before consent was obtained.

Because the record and case worker notes did not address whether the substitute decision-maker received the required information about the treatment plan, the Board erred in law by failing to apply the correct consent test.

The appeal was allowed and the matter was referred back with directions that the Board address consent under s. 11 at the upcoming review.

The plaintiff brought a motion to strike the self-represented defendant's statement of defence for failing to pay two prior costs awards totaling $22,250.

The defendant claimed impecuniosity, citing health issues and limited income.

The court found the defendant's evidence of impecuniosity insufficient and inconsistent with his social media posts depicting a lavish lifestyle, including frequent casino visits and dining out.

The court ordered the defendant to pay the outstanding costs within 60 days, failing which the plaintiff may move without notice to strike the defence.

The plaintiffs brought a motion for summary judgment against the defendant purchaser after an aborted real estate transaction.

The defendant claimed she refused to close because the property was zoned W2 rather than residential as advertised on the MLS listing.

Following a mini trial to assess credibility, the court found text message evidence proved the defendant discovered the true W2 zoning before submitting her offer and was pleased with it.

The court concluded the defendant did not rely on the MLS representation, granted summary judgment to the plaintiffs, and awarded damages for the difference in resale price and carrying costs.

The respondent brought a motion to strike the applicant's pleading for failure to comply with disclosure orders.

The motion was successful and the applicant's claim for an equalization payment was struck.

This endorsement addresses the costs award following the successful motion.

The respondent sought costs in the range of $80,000 to $105,000, while the applicant argued for no costs or only nominal costs.

The court found the applicant's behaviour unreasonable but not in bad faith.

The applicant failed to provide current financial disclosure to support claims of inability to pay.

The respondent had served a settlement offer on December 12, 2023, which the applicant failed to meet or exceed.

The court awarded costs on a partial indemnity basis prior to the offer date and full recovery thereafter.

Purchasers sought return of a $150,000 deposit on a failed real estate transaction for a property in Kitchener, Ontario.

The Agreement of Purchase and Sale was dated July 22, 2024, with a purchase price of $2,840,000 and closing date of August 26, 2024.

The sale did not close.

The purchasers raised two grounds for return of the deposit: (1) the vendor's spouse did not provide the required matrimonial consent under the Family Law Act, and (2) a writ of execution against the vendor was not removed from title.

The court found both grounds valid and ordered return of the deposit with interest and costs.

The applicant sought to terminate child support obligations and fix arrears at zero.

The parties were married in 1998 and separated in 2005.

A final order in 2008 required the applicant to pay $469 per month in child support based on disability benefits income of $31,820.

As of November 2024, arrears totaled $87,949.96.

The applicant claimed inability to work due to health reasons.

The court found the applicant intentionally underemployed and imputed income based on his education and qualifications.

The application was dismissed, support was continued for the remaining child at $264 per month, and costs of $10,000 were awarded to the respondent.

The plaintiff commenced a 468-page statement of claim against 38 defendants, alleging that her children's autism was caused by environmental toxins and acetaminophen, and seeking billions of dollars to fund a fecal microbiota transplant program.

A motion judge dismissed the claim against most defendants under Rule 2.1.01 as frivolous and vexatious, but allowed the claims against the Bayer and Johnson defendants to proceed.

The Bayer and Johnson defendants appealed.

The Divisional Court allowed the appeal, finding that the motion judge erred by failing to consider the plaintiff's lack of standing, the court's inability to order the requested research funding, and the numerous hallmarks of querulous litigation present in the claim.

The action was dismissed against the remaining defendants.

The applicant sought judicial review of a decision by the Agriculture, Food and Rural Affairs Appeal Tribunal upholding the respondent Commission's Cost of Production Formula for chicken pricing.

The Divisional Court found that the Tribunal failed to adequately explain its preference for certain expert evidence over others, rendering its reasons conclusory and inadequate.

The application was allowed, the Tribunal's decision was quashed, and the matter was remitted for a fresh hearing.

The appellants appealed a trial judgment that apportioned 35% liability to them for a rear-end motor vehicle collision.

The respondent had rear-ended the appellants' vehicle after it allegedly stopped suddenly.

The Divisional Court found the trial judge made a palpable and overriding factual error by conflating the parties' evidence, leading to an unwarranted adverse credibility finding against the appellants.

Furthermore, the trial judge erred in law by failing to apply the presumption of negligence against the rear driver, as a sudden stop within a lane of traffic does not constitute an unusual circumstance sufficient to rebut the reverse onus.

The appeal was allowed, and the respondent was found 100% liable.

The appellant retained the respondent solicitor for a residential property purchase and later sought to assess his final account.

The assessment officer found the requisition was out of time under the Solicitors Act, and a motion judge subsequently dismissed the appellant's motion to permit the assessment to proceed.

On appeal, the Divisional Court upheld the motion judge's decision, finding that the account had been paid and the appellant failed to demonstrate any special circumstances under section 11 of the Solicitors Act to justify an assessment.

The moving parties sought leave to appeal the decision of Gibson J. dated December 19, 2024.

The Divisional Court granted leave to appeal and fixed costs of the motion at $5,000, payable in the discretion of the panel hearing the appeal.

The moving party, acting self-represented, brought a motion for leave to appeal a lower court decision dated December 10, 2024.

The Divisional Court reviewed the matter in writing.

The court dismissed the motion for leave to appeal and awarded costs to the responding parties in the fixed amount of $2,000.

The plaintiff debtors brought a motion for leave to pay the full amount owing to the defendant creditor into court and for an order discharging the encumbrances held as security.

The creditor refused to accept payment unless it was provided with the source of the funds and an additional $500,000 for legal costs.

The court found the creditor's conditions unreasonable, noting that the funds were coming directly from a Schedule III bank and that the credit agreement did not entitle the creditor to costs for defending a breach of contract action brought by the debtors.

The motion was granted.

Sentencing following convictions for incest and breach of a release order arising from a father-daughter sexual relationship that began after the complainant, as a vulnerable young adult, located the offender and moved into his home.

The court held that consent was irrelevant to incest, emphasized denunciation as the overriding sentencing principle, and treated the complainant's vulnerability, the birth of a child, the offender's introduction of illegal drugs, his blame-shifting, and his criminal record as major aggravating factors.

While the court distinguished authorities involving child victims, it relied on the Supreme Court's guidance on sexual-offence sentencing to craft a significant penitentiary sentence.

The offender received 8 years for incest and 18 months concurrent for the release-order breach, with ancillary orders and enhanced credit for presentence custody.

On a family law motion arising from an equalization dispute, the respondent sought to strike the applicant's pleadings for longstanding non-compliance with multiple disclosure orders.

The court reviewed years of missing bank statements, credit applications, business records, insurance documents, and inconsistent evidence about business ownership and financing.

Applying the three-step framework for striking pleadings and emphasizing the centrality of full financial disclosure in family litigation, the court held that the applicant's failures constituted a triggering event, made the remedy appropriate, and left no adequate lesser alternative.

The applicant's claim was struck, with costs to be addressed separately if not agreed.

The appellant appealed a decision restoring a restrictive covenant and Notice of Claim on her property.

The property was originally under the Registry Act, where a 1958 restrictive covenant was extended to 2038 by a 1998 Notice of Claim.

In 2003, the property was converted to the Land Titles system.

The appellant argued that under s. 119(9) of the Land Titles Act, the covenant was deemed to expire 40 years after its original 1958 registration.

The Divisional Court dismissed the appeal, holding that the conversion to Land Titles did not extinguish the rights preserved by the Notice of Claim under the Registry Act, and the covenant remains valid until 2038.

The appellant father appealed a trial judgment granting sole custody of the parties' child to the respondent mother and specifying his parenting time.

He argued the trial judge failed to consider the maximum contact principle, misapprehended evidence including family violence, ignored case law, and exhibited a reasonable apprehension of bias.

The Divisional Court dismissed the appeal, finding the trial judge properly focused on the child's best interests, made no palpable and overriding errors in assessing the evidence, was not required to cite case law, and demonstrated no bias.

The applicant sought judicial review of a decision by the Minister's Designee ordering him to repair and plug 62 hazardous petroleum wells owned by a bankrupt company.

The company was previously run by the applicant's deceased father.

The applicant, who had no financial interest in the company, volunteered to help his ailing father by reading meters and communicating with regulators.

The Designee found the applicant was an 'operator' under the Oil, Gas and Salt Resources Act.

The Divisional Court held this decision was unreasonable, as there was no evidence the applicant had decision-making authority or the power to influence his father's decisions.

The application was allowed and the Designee's order was set aside.

The plaintiff, a surety company, brought a motion for summary judgment to compel the defendant, a personal representative of an estate, to post collateral under an indemnity agreement.

The defendant had breached his fiduciary duty by improperly distributing estate funds to maternal heirs, failing to investigate paternal heirs' claims, and not complying with a Michigan probate court's disgorgement order.

The court granted the plaintiff's motion, finding the indemnity agreement clear and rejecting the defendant's defenses of *non est factum* and relief from forfeiture due to his carelessness and unreasonable conduct.