R.E. Charney

Following a summary judgment motion in a wrongful dismissal action, the parties were unable to agree on the calculation of damages based on the court's methodology.

The plaintiff brought a motion to determine the amount of damages.

The court largely accepted the employer's calculation of unpaid commissions and average salary, finding it consistent with the employment contract and the court's previous reasons.

The court awarded the plaintiff total damages of $25,573.98, comprising unpaid commissions, unpaid bonuses, and notice period damages.

The respondent father brought a motion to change a 2018 consent order, seeking to reduce his child and spousal support obligations based on a claimed reduction in his self-employment income.

The court found that the respondent had reorganized his corporation shortly after the consent order and was splitting income with his new spouse and son.

The court imputed income to the respondent by adding back the non-arm's length salaries and dividends, setting his income at $195,488 rather than his claimed $144,121.

Support was adjusted accordingly, retroactive only to January 1, 2021, as a previous motion for 2020 had already been dismissed.

The respondent father brought a motion to change a temporary parenting order to increase his parenting time with the parties' child, who has Autism Spectrum Disorder.

The court found no material change in circumstances but determined the original order was time-limited, allowing for a review.

Applying the maximum contact principle, the court partially granted the motion, expanding the father's summer parenting time to four non-consecutive weeks and extending his alternate weekend parenting time to Monday mornings, while denying his request for additional mid-week overnights.

The applicant mother brought a motion for interim retroactive and continuing child support, as well as retroactive spousal support.

The respondent father argued that past overpayments should be credited and that retroactive claims should be deferred to trial due to factual disputes regarding income and joint funds.

The court ordered prospective child support and limited retroactive child support to August 2020, when the respondent's alleged overpayments would have been exhausted.

The issue of retroactive spousal support was reserved to trial.

The applicant brought a motion to prove a holograph will in solemn form and to be appointed Estate Trustee without an administration bond.

The deceased, who had terminal cancer, wrote a brief note in Farsi leaving his wealth to the applicant, his close friend and caregiver.

The court found the document to be a valid holograph will under section 6 of the Succession Law Reform Act.

However, the court dismissed the motion to dispense with the administration bond without prejudice, citing inconsistencies in the applicant's evidence regarding the value of the estate and its debts.

The plaintiff brought a motion in writing for an order compelling the defendants to produce a further and better affidavit of documents.

After the defendants filed their responding record and factum, the plaintiff filed multiple supplementary motion records containing new expert requests, which the defendants had no opportunity to review before leaving the country.

The court adjourned the motion sine die, directing the plaintiff to file a single, consolidated motion record and factum in compliance with the Rules of Civil Procedure before the motion could proceed.

The defendant brought a motion in writing to set aside a previous costs order made against it, arguing the order was obtained without proper notice.

The plaintiff objected to the motion proceeding in writing and requested an opportunity to make oral argument.

The court noted the defendant presented a strong prima facie case that the previous order was obtained without notice, but pursuant to Rule 37.12.1(6), adjourned the motion to an oral hearing to allow the plaintiff to make submissions.

The plaintiff mortgagee obtained summary judgment and a writ of possession after the defendant mortgagor defaulted on her mortgage.

The self-represented defendant subsequently obtained an ex parte order staying the execution of the writ of possession.

The plaintiff brought a motion to set aside the stay.

The court granted the plaintiff's motion, finding that the defendant failed to meet the test under Rule 37.14 to set aside the summary judgment, as she had no defence on the merits to the mortgage default and had not moved forthwith.

The plaintiff brought a motion for a Certificate of Pending Litigation (CPL) against two properties, claiming a beneficial interest through a resulting trust.

The properties had been registered in the names of her family members.

The court found that the claim regarding one property was statute-barred by the 10-year limitation period under the Real Property Limitations Act.

For the other property, although there was a triable issue, the court declined to grant the equitable remedy of a CPL because the plaintiff admitted she originally registered the properties in her family members' names to shield them from her husband's equalization claims, thereby violating the clean hands doctrine.

The offenders were convicted by a jury of sexual assault and being a party to sexual assault.

The complainant was highly intoxicated and lacked the capacity to consent when the primary offender engaged in prolonged sexual activity with her in the back seat of a car.

The co-offender aided and abetted by driving the car, asking the complainant if she consented while recording her, and taking photos and videos of the assault.

The court sentenced the primary offender to 32 months' imprisonment and the co-offender to two years' imprisonment plus one year of probation, emphasizing denunciation and deterrence for a crime of opportunity against a vulnerable victim.

The plaintiff in a motor vehicle accident claim brought a motion to add a proposed defendant to the action after the apparent expiry of the two-year limitation period.

The plaintiff argued that the claim against the proposed defendant was not discovered until after the Statement of Defence was received.

The court found that the plaintiff failed to lead evidence to overcome the statutory presumption that the claim was discovered on the date of the accident, especially given that the plaintiff had sent a notice of action to the proposed defendant's insurer prior to issuing the Statement of Claim.

The motion to add the proposed defendant was dismissed.

The defendant brought a motion to compel the plaintiff to answer outstanding undertakings given at her examination for discovery, specifically regarding the production of business records.

The plaintiff argued the records were no longer relevant as she had abandoned her income loss claim and cited financial hardship.

The court granted the motion, holding that undertakings must be honoured once given pursuant to Rule 31.07(4), and that the business records remained relevant to determining whether the plaintiff met the threshold for serious permanent impairment.

The respondent brought a motion for an equal division of the net proceeds from the sale of a property jointly owned by the unmarried parties.

The applicant opposed, claiming a resulting trust or unjust enrichment based on his unequal financial contributions.

The court found that neither party had pled the issue of property division in their application or answer, and the evidentiary record was deficient.

The court adjourned the motion, granting both parties leave to amend their pleadings and file further evidence.

The applicant mother brought a motion for temporary sole custody of the parties' three-year-old child after the respondent father unilaterally removed the child from her care following an altercation.

The father argued he established a new status quo and sought interim sole custody with supervised access for the mother.

The court found that a status quo cannot be established by unilateral self-help and that the father's actions raised serious questions about his parenting judgment.

Relying on evidence from the Children's Aid Society, the court granted temporary sole custody to the mother with a specified parenting schedule for the father.

The respondent mother brought a motion to vary the applicant's access to their seven-year-old child.

The respondent raised concerns that the applicant, who works in the sex trade, was not adhering to COVID-19 safety protocols with clients, thereby putting the child at risk.

The court found that the applicant failed to provide sufficient evidence of compliance with COVID-19 protocols, such as wearing masks and social distancing.

The court concluded that this constituted a material change in circumstances and temporarily suspended the applicant's physical access, replacing it with video access, until the applicant could provide an undertaking and a realistic proposal to comply with COVID-19 protocols.

The applicant brought a motion for an interim distribution of the proceeds from the sale of the matrimonial home, disclosure of her 17-year-old son's address, and severance of the divorce from corollary relief.

The respondent opposed the distribution, arguing the funds should be held as security for child support and to prevent the applicant from funding vexatious litigation.

The court granted the interim distribution, finding sufficient funds would remain in trust to secure any potential child support obligations.

The court also ordered the respondent to disclose the son's address, as the child had not withdrawn from parental control.

The remaining issues were adjourned.

The parties, who previously shared week-about parenting of their four-year-old daughter, brought competing motions for temporary primary residence and school enrolment as the child was starting junior kindergarten.

The mother sought primary residence in Bowmanville, while the father sought primary residence in Scarborough.

Applying the best interests of the child factors under section 24 of the Children's Law Reform Act, the court granted temporary primary residence to the mother in Bowmanville, noting she had been the more directly involved parent.

The court ordered a parenting schedule for the father including alternate weekends, one mid-week overnight, and shared holidays to maintain his close relationship with the child.

The parties, who share joint custody of their 10-year-old daughter, brought competing motions regarding her school attendance for the 2020-2021 school year during the COVID-19 pandemic.

The applicant father sought an order for online learning due to his own autoimmune disease and concerns the child might be genetically predisposed to it.

The respondent mother sought in-person learning, citing the child's learning difficulties and Individual Education Plan.

The court ordered in-person learning, finding it in the child's best interests given her educational needs and the lack of evidence that she was at increased medical risk.

The applicant mother brought an urgent motion to temporarily suspend a scheduled expansion of the respondent father's parenting time, pending a trial on her Motion to Change.

The mother argued that the father's relocation 55 km away would result in an unreasonable commute for the child.

The court dismissed the motion, finding no material change in circumstances, as the final order explicitly permitted relocation within the Greater Toronto Area and there was no expert evidence showing the commute would harm the child.

The respondent father brought a motion seeking primary residence of the children, exclusive possession of the matrimonial home, and other relief prior to a case conference.

He alleged urgency based on the condition of the home and the mother's employment at a nursing home during the COVID-19 pandemic.

The court dismissed the motion, finding that the evidence did not establish urgency or undue hardship under Rule 14(4.2) of the Family Law Rules.

The mother was awarded costs of $3,000.