Peter M. Callahan

Two consolidated appeals from Superior Court orders in a family law matter.

The first appeal (C63096) concerning the striking of the appellant's pleadings was found to be moot as the order had been stayed and the trial proceeded.

The second appeal (C64255) challenged the trial judge's final order following trial, including findings of non-disclosure by the appellant, an unequal division of family property (75% to the respondent), and the denial of spousal support.

The Court of Appeal upheld the trial judge's findings and dismissed both the appeal and cross-appeal.

Concetta Angeloni, through her litigation guardians, successfully moved for directions, an accounting of her deceased husband's management of her property under a Power of Attorney, and an accounting of his estate assets by the Estate Trustee, Maria Lugonia.

The court also granted orders to prohibit dissipation of estate assets and compel document production and examinations.

This endorsement addresses the costs of these motions, which were awarded to the applicant on a substantial indemnity basis due to the respondents' unreasonable delays and failure to respond to settlement offers.

The appellant brought a motion to transfer his appeal of a summary judgment order to the Court of Appeal, after his process server mistakenly filed the Notice of Appeal in the Divisional Court.

The court applied the Dunnington test under s. 110 of the Courts of Justice Act to determine whether to transfer the appeal.

Finding that the appeal lacked merit and merely sought to reweigh the motion judge's factual findings without identifying any extricable error of law, the court concluded the appeal was frivolous.

The motion to transfer was dismissed with costs awarded to the respondent.

The appellant mortgagee sought to enforce a mortgage through power of sale against the respondent mortgagor.

The mortgagee attempted two purported sales of the property to itself.

The trial judge dismissed the mortgage action, finding that the mortgagee's enforcement rights were suspended under section 22 of the Mortgages Act due to failure to provide proper mortgage statements in response to the mortgagor's requests.

The Court of Appeal upheld this decision, holding that the mortgagee's ability to enforce the mortgage was statutorily suspended at the time of both purported sales because it had not complied with the requirement to provide accurate and complete mortgage statements within 15 days of the mortgagor's requests.

The plaintiff bank brought a motion for summary judgment to collect on an overdraft facility and a personal guarantee signed by the individual defendant.

The defendant argued non est factum, claiming he was misled by a bank representative into believing no personal guarantee was required.

The court granted summary judgment, finding no genuine issue requiring a trial, as the defendant was careless in signing the document and the bank's statements did not amount to a material misrepresentation.

The applicant, a dependent spouse residing in a long-term care facility, brought a motion for directions and preservation orders against her deceased husband's estate and its beneficiaries.

The deceased had previously severed the joint tenancy of their matrimonial home using a Power of Attorney, sold the home, and transferred funds to himself and his niece (the Estate Trustee).

The court ordered the Estate Trustee to provide an informal accounting of the deceased's management of the applicant's property, her own management of the deceased's property, and her actions as Estate Trustee.

The court also granted an injunction preventing the dissipation of estate assets and ordered the beneficiaries to pay into court any monies received from the deceased or his estate.

On appeal from a trial decision in a family law matter involving equalization, spousal support, and costs following a 27-year marriage.

The trial judge had ordered an equalization payment, spousal support at the low end of the Spousal Support Advisory Guidelines, and full indemnity costs against the wife.

The Court of Appeal affirmed the equalization payment but found errors in the spousal support calculation and costs award, returning both issues to the trial judge for reconsideration.

On the second appeal, the Court of Appeal corrected the wife's income calculation to account for tax implications and eliminated double-counting, resulting in a higher spousal support award.

The costs award was upheld as reasonable given the wife's conduct.

The plaintiffs brought an action for the release of two tranches of escrow funds held pursuant to a share purchase agreement.

The defendant moved to stay the action in favour of arbitration, arguing its claims for equitable set-off fell under the agreement's arbitration clause.

The plaintiffs moved for summary judgment.

The court dismissed the motion for a stay, finding the claim for the first tranche was a proper matter for summary judgment and fell within the statutory exception to mandatory arbitration.

The court granted partial summary judgment for the first tranche, holding that the defendant's unliquidated claims for equitable set-off could not be used to withhold the escrow funds.

However, the court found a genuine issue requiring a trial regarding the accounting adjustments for the second tranche and ordered a mini-trial.

Following a 20-year relationship, the applicant wife sought spousal support, while the respondent husband, who had custody of their three children, sought spousal support and section 7 expenses.

The court found the respondent intentionally unemployed and imputed his income at $115,000.

The applicant was awarded compensatory and non-compensatory spousal support due to her 11-year absence from the workforce to care for the children.

The court ordered the respondent to pay $1,150 per month in ongoing spousal support, which included a $200 monthly deduction representing the applicant's contribution to the children's section 7 sports and post-secondary expenses.

The respondent's claims for spousal support and debt contribution were dismissed.

The defendants brought a motion to strike the plaintiff's defamation claim.

The plaintiff had sued the defendants for publishing an article in a Chinese language newspaper about her arrest for fraud, which was based on an RCMP press release.

The charges were later withdrawn.

The court found that the claim disclosed no reasonable cause of action because the publication of the fact of a criminal charge, even after withdrawal, does not support a defamation claim.

Furthermore, the Google translation of the article relied upon by the plaintiff demonstrated that the article accurately stated she faced prison 'if convicted'.

The claim was struck without leave to amend as it was frivolous and vexatious.

The applicant wife was successful on a motion regarding the respondent husband's failure to comply with court orders and make financial disclosure.

The court awarded costs to the applicant, noting the respondent's unreasonable behaviour and breach of four court orders.

The respondent was ordered to pay $19,298.79 in costs forthwith and prohibited from bringing further proceedings until paid.

The Superior Court of Justice issued a costs endorsement following the dismissal of an action challenging a will.

The defendant, Constance McCron, sought substantial indemnity costs from the plaintiffs.

The plaintiffs argued for costs from the estate or that each party bear their own.

The court applied the modern approach to estate litigation costs, noting that while the plaintiffs had reasonable grounds to question the will's validity (suspicious circumstances, testator's susceptibility), their claim was ultimately statute-barred.

The defendant's request for costs was denied due to her misleading evidence regarding the testator's mental state.

Ultimately, the court ordered that each party bear their own costs.

The plaintiffs challenged the validity of Constantin Birtzu's 2006 will, alleging lack of testamentary capacity and undue influence by his daughter, Constance McCron, who was the sole beneficiary.

They also sought a constructive trust over property and an accounting of assets.

The court found the action statute-barred due to the expiration of the limitation period.

Despite this, the court proceeded to address the merits, finding that the defendants successfully proved testamentary capacity and that the plaintiffs failed to prove undue influence.

The court upheld the 2006 will and dismissed the action.

Two actions were tried together involving a commercial property.

In the first action, the mortgagee sought to enforce a mortgage and claim the balance owing.

In the second action, the mortgagor/landlord claimed rental arrears from the tenant and sought to invalidate the mortgagee's purported sale of the property to itself under power of sale.

The court found that the mortgagee acted in bad faith, failed to obtain a proper price, and violated the rule against a mortgagee selling to itself.

The power of sale was declared void, and the title was rectified.

The court also found that the mortgage had been paid in full through the receipt of rents, dismissing the mortgage action.

The tenant and subtenant were found jointly and severally liable for rental arrears accruing after the mortgage was paid out.

This costs endorsement followed a three-day trial in a family law matter.

The applicant sought costs against the respondent husband and his mother.

The court found the applicant largely successful on the major trial issues of equalization of property and spousal support.

The respondent husband was found to have engaged in unreasonable conduct, particularly regarding property disclosure and trial presentation, which necessitated extensive litigation.

The respondent mother's claim for costs against the applicant was dismissed, as her involvement stemmed from the respondent husband's lack of clarity.

The applicant was awarded partial recovery costs against the respondent husband.

The Ontario Superior Court of Justice reconsidered spousal support and costs following a direction from the Court of Appeal.

The Court of Appeal had found the trial judge's initial determination of the wife's income for support purposes unclear.

The trial judge, Harper J., was tasked with re-evaluating the wife's income, particularly regarding capital gains from a one-time share sale, and its impact on periodic spousal support, as well as reconsidering the costs award.

The court imputed an annual income of $282,119 to the wife based on the reasonable investment yield of her capital resources and pension income, and ordered the husband to pay $8,000 per month in spousal support.

The court also found the wife's conduct amounted to bad faith in driving litigation, leading to a substantial costs award against her, requiring her to pay $322,125.70 to the husband.

The parties separated after a 15-year arranged marriage.

The applicant sought equalization, retroactive child support, and spousal support.

The respondent claimed a large deduction for a promissory note to his father regarding the purchase of the matrimonial home, and argued he had a resulting trust interest in his mother's half of the home.

The court rejected the promissory note as unproven, drew an adverse inference from the respondent's failure to call his father, and found no resulting trust.

The court awarded the applicant an equalization payment of $181,909.96, retroactive child support of $11,352, and compensatory spousal support of $3,200 per month for 13 years, but denied retroactive spousal support.

The appellant mother appealed a trial judge's order granting joint custody of their three-year-old son in the form of a parallel parenting arrangement.

She argued that joint custody was inappropriate given the parties' inability to communicate.

The Court of Appeal dismissed the appeal, finding the trial judge's decision reasonable and necessary to preserve the respondent father's relationship with his son, especially given findings that the mother overstated her fear and refused to cooperate.

The appellants appealed a decision finding they were in default of a vendor take back promissory note, which triggered an acceleration clause.

The application judge found that the appellants failed to make full quarterly payments and that proper written notice of default was provided.

The Court of Appeal dismissed the appeal, holding that the application judge's interpretation of the promissory note and conclusion that notice was properly given were reasonable.

The parties separated after a 27-year marriage.

At trial, the judge ordered the wife to pay an equalization payment, ordered the husband to pay indefinite spousal support based on imputed incomes, and awarded full indemnity costs to the husband.

The wife appealed the spousal support, equalization, and costs orders.

The Court of Appeal allowed the appeal in part, finding that the trial judge failed to explain the basis for imputing $484,356 in annual income to the wife, precluding meaningful appellate review.

The court also set aside the costs award, finding the trial judge misapprehended the evidence regarding the husband's settlement offer and his degree of success at trial.

The spousal support and costs issues were remitted to the trial judge, while the equalization payment was upheld.