R.J. Nightingale

The applicant husband sought an equalization payment and occupation rent following a 39-month cohabitation and marriage.

The court determined several issues regarding the calculation of net family property, including the treatment of a pre-marriage deposit on the matrimonial home, a debt owed by the husband to his former spouse, notional disposition costs for the wife's condominium in China, and whether a vehicle and funds from the wife's mother were excluded gifts or loans.

The court found that an equal division of net family property would be unconscionable under s. 5(6) of the Family Law Act due to the short duration of the marriage and the disproportionate increase in the value of the wife's foreign property, which was unrelated to the marriage.

The husband's equalization payment was reduced from $93,499 to $65,500, and his claim for occupation rent was dismissed.

The appellants appealed a Small Claims Court judgment regarding arrears of rent, utilities, and maintenance charges for a land lease community.

The trial judge had dismissed most claims, finding they fell under the exclusive jurisdiction of the Landlord and Tenant Board (LTB) as rent.

The Divisional Court found the trial judge erred by failing to treat a prior LTB consent order—which declined jurisdiction over current claims and deferred them to Small Claims Court—as final and binding.

The appeal was allowed in part, awarding the appellants additional damages for utility arrears up to the date of the LTB order, and costs of the trial.

The defendant ophthalmologist brought a motion for summary judgment to dismiss the plaintiff's medical malpractice action.

The plaintiff alleged that the defendant failed to obtain informed consent for a gold shunt surgery that resulted in a hemorrhage and loss of vision.

The court granted the motion, finding no genuine issue for trial because the plaintiff failed to provide any expert medical evidence to support her claim, relying instead on an inadmissible hearsay affidavit from an articling student.

The defendant's expert evidence established that the standard of care for disclosure was met and that a reasonable person in the plaintiff's circumstances would have consented to the surgery to prevent inevitable blindness.

The defendants were entirely successful on their motion to set aside a noting in default and in opposing the plaintiffs' motion for an adjournment.

The court determined the costs payable to the defendants.

The self-represented plaintiffs sought costs for their cross-examinations, but the court denied this request as they failed to demonstrate an opportunity cost or that they performed work ordinarily done by a lawyer.

The court fixed the costs payable by the plaintiffs to the defendants at $7,000, considering the factors under the Rules of Civil Procedure and the unreasonableness of the plaintiffs' settlement offers.

The plaintiffs requested an adjournment of the defendants' motion, further document production, and additional cross-examination of the defendants' affiant.

The court noted a history of significant delays caused by the plaintiffs' failure to serve responding materials.

The court found no merit in the plaintiffs' arguments challenging the authority of the defendants' counsel or the affiant's credibility.

Applying the principle of proportionality under Rule 1.04, the court dismissed the plaintiffs' motion to ensure the expeditious resolution of the proceedings.

The self-represented plaintiffs noted the defendants in default for failing to deliver statements of defence in two actions claiming $20 million each for wrongful arrest and Charter breaches.

The defendants moved to set aside the noting in default under Rule 19.03(1).

The court applied the factors from Kisel v. Intact Insurance Company, finding the defendants' delay was reasonable given the context of multiple overlapping actions, there was no prejudice to the plaintiffs, and the plaintiffs engaged in sharp practice by not warning opposing counsel before noting them in default.

The motion was granted and the noting in default was set aside.

The moving party mother brought a motion for summary judgment seeking sole custody of the parties' two children.

The responding party father opposed the motion and sought sole custody.

The court found that the children had resided with the mother since separation and were doing well.

The father, who suffered from significant medical and mental health issues, failed to provide specific evidence or a parenting plan to demonstrate a genuine issue requiring a trial.

The court granted summary judgment, awarding sole custody to the mother.

The defendant snow removal contractor brought a motion for summary judgment to dismiss the plaintiffs' slip and fall action against it.

The plaintiff slipped and fell on a snow-covered, icy parking lot at an apartment building.

The contractor argued it had fulfilled its winter maintenance obligations.

The court found that the contractor had been hired to remove a significant accumulation of ice but failed to clear the ice between parked cars, where the plaintiff fell.

The court concluded there was a genuine issue requiring a trial regarding whether the contractor breached the standard of care, and dismissed the motion.

The applicant brought a motion to change a 2004 child support order, seeking increased ongoing support and retroactive support due to the respondent's failure to disclose significant increases in his income.

The court found the respondent engaged in blameworthy conduct by ignoring the court order to provide annual income tax returns.

The court ordered ongoing child support based on an imputed income of $50,000 and awarded retroactive child support back to January 1, 2008, totaling $52,632 plus interest, with the applicant permitted to pursue further retroactive support at trial.

The applicant brought a contempt motion alleging the respondent failed to comply with a prior court order requiring financial disclosure, including tax returns, notices of assessment, and a financial statement in relation to a motion to change child support.

Although the respondent did not initially comply with the disclosure deadline, he later produced substantial documentation after retaining counsel and made reasonable efforts to obtain records from the Canada Revenue Agency and former accountants.

Applying the three‑part test for contempt requiring proof beyond a reasonable doubt of a deliberate and willful breach of a clear order, the court found the respondent’s conduct did not meet the required standard.

The evidence did not establish a deliberate or persistent refusal to comply.

The contempt motion was therefore dismissed, though the court found the respondent’s delay in disclosure unreasonable and ordered that the applicant be entitled to costs despite the dismissal.