Richard A. Lococo

The applicant, Heather Miller, sought to enforce an undertaking given by the respondents, Telemaco Matrundola and 1000125576 Ontario Inc., concerning the applicability of Harmonized Sales Tax (HST) to the sale of real property.

The parties had agreed that the purchase price would be readjusted based on a tax ruling from the Canada Revenue Agency (CRA).

The applicant obtained a CRA ruling confirming the transaction was HST exempt, but the respondents refused to comply, alleging the ruling request contained inaccurate or incomplete information regarding commercial activity on the property and the applicant's HST registration status.

The court found that the applicant had complied with the undertaking and that the information provided to CRA was accurate and complete for the purpose of the ruling.

The court emphasized its limited jurisdiction in tax matters, which fall under the Tax Court of Canada.

The application was granted, ordering the respondents to pay the withheld portion of the purchase price to the applicant with interest.

The appellant father appealed a child protection order that placed his child in the extended care of the Children's Aid Society of Toronto.

He alleged that the trial judge made factual errors regarding his insight into the mother's drug abuse, his focus on the mother, the safety of his care plan, and his credibility.

The Superior Court of Justice, applying the standard of palpable and overriding error for factual findings, dismissed the appeal.

The court found no obvious error in the trial judge's assessment of the father's credibility and the viability of his care plan, emphasizing the high degree of deference owed to trial judges in child protection proceedings where the child's best interests are paramount.

The applicant, Noel Paragua, sought to terminate his spousal support obligation to the respondent, Silva Lola, following his retirement, arguing it constituted a material change in circumstances.

He also sought extended terms for reimbursing a joint debt.

The respondent opposed, asserting the retirement was not involuntary and the applicant's income was not materially different.

The court dismissed the applicant's motion to change, finding he failed to establish a material change in circumstances, particularly that his retirement was involuntary or that his income had materially decreased.

The court also rejected arguments for reducing the applicant's income due to "double-recovery" or imputing income to the respondent.

The applicant was ordered to reimburse the respondent for his share of a joint debt with specific payment terms.

The appellant father (B.K.) appealed a final order from the Ontario Court of Justice that placed his children in the care and custody of the respondent mother (D.A.) subject to the Society's supervision.

The appeal challenged the trial judge's findings regarding who had pre-intervention charge of the children and the children's true wishes, and alleged misconduct by the Society and the Office of the Children's Lawyer (OCL).

The Superior Court dismissed the appeal, upholding the trial judge's findings of fact and mixed fact and law, emphasizing the high degree of deference owed to trial judges in child protection proceedings.

The court also dismissed the appellant's motion to admit fresh evidence, finding it did not meet the required standard of being highly relevant and decisive to the children's best interests.

This endorsement addresses the costs arising from an application where the applicants sought a declaration of adverse possession over disputed lands.

The court previously granted the applicants ownership of a portion of the lands (Common Grounds) but not the entirety.

The respondent, deemed the successful party for costs, sought substantial indemnity costs for both the current and a prior related application.

The applicants sought partial indemnity costs.

The court awarded the respondent partial indemnity costs, finding that the respondent's offers to settle did not meet the requirements of Rule 49.10 and that the applicants' conduct did not warrant substantial indemnity costs.

The parties were ordered to equally share the costs of implementing the judgment.

The defendants (Filips) brought a motion to set aside a default judgment obtained by the plaintiffs (Ross and Campbell) for $617,209.59.

The Filips argued that the plaintiffs failed to make full and frank disclosure on damages in their ex parte motion for default judgment and that their previous counsel's significant personal and professional issues constituted a plausible excuse for their default.

The court found that the plaintiffs indeed failed to disclose material facts (a lower appraisal report) on damages, which alone was sufficient to set aside the judgment under Rule 39.01(6).

Additionally, applying the five-factor test from Mountain View Farms Ltd. v. McQueen, the court found the Filips' explanation for default plausible, an arguable defence on the merits (both liability and damages), and that setting aside the judgment served the interests of justice, despite the Filips' prior fraudulent conveyance attempt.

The default judgment was set aside, and a schedule for the action was ordered.

The applicants sought ownership by adverse possession of a triangular parcel of land ("Disputed Lands") on their property's eastern border.

The respondent, the registered owner of the adjoining property, conceded a portion of these lands ("Common Grounds") but disputed the remainder.

The court found that the applicants established adverse possession of the "Common Grounds" due to their continuous, open, and exclusive use, and the mutual mistake regarding ownership.

However, the court found insufficient evidence to establish adverse possession of the balance of the "Disputed Lands." The judgment declared the applicants as lawful owners of the "Common Grounds" and ordered the necessary land registry amendments.

The moving parties, two of the plaintiffs in a civil assault action, sought an order to relieve them from the deemed undertaking rule to use a security video, obtained through discovery, for a criminal prosecution against the individual defendants (security guards) and a police officer.

The court found that the deemed undertaking rule applied to the video as it was disclosed under compulsion, despite being provided early for tactical reasons.

The court further determined that the public interest in pursuing a criminal investigation did not outweigh the prejudice to the disclosing party (20 Vic Management Inc.) and its co-defendants, particularly the tactical leverage a concurrent criminal investigation could create in the civil action.

The motion was dismissed.

Mr. Towing Inc. appealed a Small Claims Court judgment that dismissed its action for additional vehicle storage charges against Mercedes-Benz Financial Services Canada Corporation (MBFS).

The trial judge found that Mr. Towing's lien for storage was limited to the initial 60-day period due to its failure to provide written notice to MBFS as required by the Repair and Storage Liens Act (RSLA).

The Divisional Court upheld the trial judge's decision, confirming that Mr. Towing was required to provide notice and that its lien was limited to 60 days of unpaid storage charges, which had already been paid by the driver's insurer.

The appeal was dismissed, and MBFS was awarded costs.

The applicant mother brought an urgent motion seeking reinstatement of parenting time, make-up time, and police enforcement after the respondent father unilaterally denied her access to their three children for two months, citing COVID-19 concerns.

The court granted the applicant's requests, finding the father's actions unjustified and his cooperation lacking.

Two weeks of make-up parenting time were ordered, followed by the resumption of the original shared parenting schedule, with police enforcement included due to the father's stated unwillingness to comply with an order he disagreed with.

The issue of costs was reserved.

The applicant father brought an emergency motion for interim primary residency of four younger children, police enforcement, and an order prohibiting the mother from removing children from the Niagara Region.

The respondent mother brought a cross-motion for interim custody, which was not deemed urgent and was adjourned.

The court granted the applicant father's motion, finding the mother exercised poor judgment in leaving the children without adequate care.

The court ordered the four younger children to reside with the father, with police enforcement and a mobility restriction on the mother.

Partial indemnity costs were awarded to the applicant.

The Respondent father successfully brought a motion to prevent the Applicant mother from moving the children outside St. Catharines.

This endorsement addresses the costs of that motion.

The court awarded partial indemnity costs to the Respondent father, finding that while the Applicant mother's resistance to deferring the interim move was ill-advised, her conduct did not rise to the level of "egregious or reprehensible" to warrant substantial indemnity costs.

The court fixed costs at $1,500, considering proportionality and reasonableness, and noting that the Respondent father's offer to settle did not meet the strict requirements for full recovery costs under the Family Law Rules.

The Respondent father brought an emergency motion to prevent the Applicant mother from moving their two children (aged six and five) outside of St. Catharines, Ontario.

The mother had filed an application seeking leave to move with the children to Watertown, New York, and intended to make an interim move to Kingston, Ontario.

The court, confirming the urgency previously determined by a Triage Judge, found that while the existing custody order did not explicitly preclude the move, it would significantly impact the father's access.

The court granted the father's emergency motion, issuing a temporary order prohibiting the mother from moving the children's residence outside St. Catharines without the father's prior written consent or further court order, pending the final determination of the mobility application.

The applicant, Sisto Seven Marquette, brought an application under s. 24(1) of the Canadian Charter of Rights and Freedoms, alleging breaches of his rights under s. 9 (arbitrary detention), s. 10(b) (rights to counsel), and s. 8 (search and seizure) following a roadside traffic stop.

He sought the exclusion of evidence under s. 24(2).

The court dismissed the application, finding no Charter breaches.

It held that police questioning during the traffic stop was within permissible highway-related purposes, the right to counsel was superseded by the requirement to provide a breath sample forthwith, and subsequent searches of his vehicle and person were lawful incidents to arrest.

Randy Calmusky, as executor, brought an application to determine entitlement to joint bank accounts and a Registered Income Fund (RIF) held by his deceased father, Henry Calmusky, with his twin brother, Gary Calmusky.

Randy also claimed occupation rent and other expenses against Gary for his use of estate assets.

The court applied the presumption of resulting trust from Pecore v. Pecore to both the joint accounts and the RIF beneficiary designation, finding that Gary failed to rebut the presumption that these assets belonged to Henry's estate.

Consequently, Gary was ordered to pay the proceeds of these accounts to the estate.

However, the court dismissed the claim for occupation rent against Gary, finding no unjust enrichment due to Gary's early intention to purchase the property and the estate's significant financial gain from the property's increased value.

Gary was held liable for a limited amount of other expenses related to his use of estate assets.

The court determined costs following a four-day family law trial concerning parenting schedules and school location for the parties' son.

Victoria (Respondent) was deemed substantially successful on the key trial issues, including the parenting schedule and the location of the child's school, despite some mixed success on specific aspects.

Applying the presumption of costs in favour of the successful party under the Family Law Rules, the court awarded Victoria $35,000 in costs, payable by Keith (Applicant) within 60 days, emphasizing proportionality and reasonableness in fixing the amount.

The respondent, Andrew Witt, sought $200,000 in costs following a 14-day family law trial where he was largely successful in his claims for expanded access, varied child support, and dismissal of the applicant's spousal support claim.

The applicant, Shannon Witt, opposed the costs request, arguing she was the successful party due to Andrew's alleged reprehensible conduct, and sought her own costs while challenging the quantum of Andrew's claim and requesting time to pay due to modest financial resources.

The court found Andrew to be the successful party, presumptively entitled to costs, and rejected Shannon's arguments regarding Andrew's conduct and her re-characterization of trial findings.

The court fixed Andrew's costs at $125,000, including disbursements, payable by Shannon in three annual installments, after considering the principles of reasonableness and proportionality, the impact of Andrew's offers to settle, and Shannon's financial situation.

The respondent, Larry Bruni, brought a motion to change seeking to terminate his child support obligations for his two children, Taylor (22) and Brandon (19), and to recover alleged overpayments.

The applicant, Catherine Bruni, sought ongoing child support and contribution to extraordinary expenses.

The court determined that Brandon remained a "child of the marriage" until April 2020, and Taylor for specific periods (May-August 2018 and January 2019-April 2020), with a gap from January 2016 to August 2017.

Ongoing child support was set at $915 per month for both children based on the father's 2018 income.

The court found the father had overpaid child support by $7,071 for prior periods.

The father was ordered to contribute to post-secondary education expenses and other extraordinary expenses, with a 40% share for the father, 26.67% for the mother, and 33.33% for the children for college fees.

After offsetting the overpayment, the father was ordered to pay the mother $3,935.80 for past expenses.

The parties, Keith Bradley Stouffer and Elizabeth Victoria Stouffer, separated after two and a half years of marriage, with one surviving child, Myles.

The trial addressed key unresolved issues including Myles's parenting schedule, school location, and child support.

The Applicant (father) sought to maintain Myles's current school in St. Catharines and a near-equal parenting schedule.

The Respondent (mother) proposed changing Myles's school to Smithville, near her new residence, and a parenting schedule with more school-day time for her.

The court ruled in favor of the Respondent, permitting Myles to attend school in Smithville from September 2019, finding it to be in the child's best interests.

A new four-week revolving parenting schedule was adopted, which reduced the father's parenting time but was deemed consistent with the maximum contact principle.

Child support was ordered from the father to the mother based on the Federal Child Support Guidelines, with section 7 expenses shared equally, considering the mother's upcoming maternity leave.

This application concerned the interpretation of a commercial lease following a fire at the leased premises, a bar and restaurant.

The applicant tenant sought a declaration that the respondent landlord was responsible for repairing fire and water damage to the walls, ceilings, and flooring, and for abating rent until repairs were complete, pursuant to Article 9.03 of the lease.

The landlord argued the damage was minor, its repair obligations were limited, and the tenant's subsequent conduct supported its interpretation.

The court found that the premises were "not fit for occupancy" or "unsafe to use or occupy" due to accelerant odour, inoperative sprinklers, and fire/water damage, triggering Article 9.03.

The court rejected the landlord's narrow interpretation of its repair obligations and its estoppel by convention argument, declaring the landlord responsible for full repairs to a comparable pre-fire state and rent abatement until completion.