Phillip W. Sutherland

The parties brought multiple motions concerning child support for two adult children, spousal support, and prejudgment interest on an equalization payment.

The court ordered the respondent to pay child support arrears for Aryn and temporary spousal support to the applicant, increasing after child support for Dale ends.

The applicant was ordered to pay child support for Dale until December 31, 2016.

The court also ordered the respondent to pay prejudgment interest on the equalization payment, rejecting the argument that pension transfer as a payment method negates interest.

This decision addresses two motions brought by Trisura Guarantee Insurance Company in the context of construction lien proceedings.

The first motion sought to set aside a charging order obtained by BPR Litigation Lawyers against a construction lien bond without notice to Trisura.

The second motion sought leave to pursue exoneration and payment out of the bond.

The court found that Trisura did not require leave to challenge the charging order, had standing due to its direct proprietary and economic interests under an Indemnity Agreement, and consequently, the charging order was set aside for lack of notice.

However, the court denied Trisura leave to bring its motion for exoneration within the construction lien actions, determining that such a claim, based on a separate Indemnity Agreement, did not expedite the resolution of the lien issues and was already the subject of a separate action in Toronto, posing a risk of inconsistent findings.

The defendants, an insurance brokerage firm and its individual employees, brought a motion to strike the plaintiffs' statement of claim against the individual employees for failing to plead a reasonable cause of action.

The court found that the statement of claim did not sufficiently allege personal liability against the individual employees, as their actions were within the scope of their employment and lacked specific allegations of fraud, deceit, dishonesty, or actions separate from the corporate entity.

While the claims against the individual defendants were struck, the plaintiffs were granted leave to amend their statement of claim within 30 days to plead facts that could sustain a viable claim against them.

This decision addresses the costs arising from a dismissed summary judgment motion brought by the defendant, Klein-Rose Homes Inc., under the Construction Lien Act.

The court applied section 86 of the CLA, which grants broad discretion in awarding costs in construction lien proceedings, and considered the Rules of Civil Procedure where not inconsistent.

The plaintiff, Allcon Concrete & Haulage Ltd., was the successful party on the underlying motion and sought costs.

The court fixed costs at $26,560 for the plaintiff, payable upon the plaintiff's success at trial or a subsequent summary judgment motion in proving the validity of its claim for lien, irrespective of the full success on the contract claim or defense against the counterclaim.

The court rejected the defendant's argument to reserve costs to the trial judge and the plaintiff's assertion of the defendant's "unduly aggressive and unreasonable" conduct.

The respondent mother sought leave to bring a status review application of a prior final order that had made the child a crown ward without access following a lengthy trial.

The court considered the test under s. 65.1(5) of the Child and Family Services Act, which requires credible and weighty evidence demonstrating that a review hearing may be warranted in the child’s best interests.

The court found the moving parent had not demonstrated meaningful change or engagement with therapeutic supports addressing the issues that led to the crown wardship order.

Evidence showed the child had improved significantly in foster care and the parent remained focused on her own desire for access rather than the child’s best interests.

Leave to bring the status review application was denied and the society’s motion to dismiss was granted.