Robert E. Charney

The applicant, charged with assault with a weapon, brought a Charter s. 8 application to exclude evidence seized from his cell phone pursuant to a search warrant.

The applicant argued the Information to Obtain (ITO) contained deliberate falsehoods regarding a witness claiming the applicant filmed the assault.

The court found the officer made a careless error in attributing the statement to the wrong witness, which did not amount to bad faith but required excision of the impugned paragraphs.

Without those paragraphs, the ITO lacked grounds to authorize a search for photographs and videos.

Applying the Grant framework under s. 24(2), the court excluded the photograph and video evidence, finding the police's failure to provide accurate information undermined the prior authorization process.

The applicant brought a motion for majority parenting time with a child he alleged was his biological son.

The child had lived with the respondent step-father since birth.

The applicant relied on a privately collected DNA test that was not legally admissible.

The court ordered the respondent to make the child available for a legally admissible paternity test, noting that if paternity is established, the parties should schedule a case conference to determine parenting time based on the best interests of the child.

The applicant mother brought a motion to temporarily suspend a provision of a consent order requiring her to travel to Las Vegas with her three-year-old son for the respondent father's parenting time.

The mother cited health risks and financial burdens associated with COVID-19 travel advisories and quarantine requirements.

The court granted the motion, finding that the pandemic and related travel advisories constituted a material change in circumstances and that non-essential international travel was not in the child's best interests at the time.

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 accused brought a Charter application seeking exclusion of drugs, cash, telephones, and a loaded prohibited firearm seized after a surveillance-based arrest for drug trafficking.

The court held that the police had reasonable and probable grounds based on confidential informant information corroborated by multiple brief transactions consistent with street-level trafficking, viewed in the totality of the circumstances.

The gunpoint arrest was justified by officer safety concerns, including intelligence relating to prior firearm allegations and the nature of the suspected offences.

The court further held there was no breach of ss. 10(a) or 10(b), as the reasons for arrest were sufficiently conveyed, the brief delay in cautioning was justified by scene and fentanyl-related safety concerns, and private access to counsel was facilitated at the first practical opportunity at the station.

The application was dismissed.

The moving party sought a declaration that a residential agreement of purchase and sale was null, void, abandoned, and unenforceable after a long-delayed closing following related trust litigation over ownership of the property.

The court held that when the vendor rejected the purchaser's proposed closing date because vacant possession could not be delivered, the purchaser was entitled to elect to continue insisting on performance rather than treat the contract as terminated.

The purchaser did so within a reasonable time and never demanded return of the deposit.

The delay did not justify rescission because the only real obstacle to closing was the vendor's continuing inability, and later failure to communicate ability, to provide vacant possession.

The motion was dismissed and costs were awarded to the responding party.

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 father brought an urgent motion seeking parenting time with the four children and an order for two children to return to their previous school after the respondent mother unilaterally moved out with the children and changed their school.

The mother alleged physical and emotional abuse and sought sole custody with supervised access.

The court found the father's alleged "confession" from the mother to be coerced, indicating controlling behavior.

While acknowledging the mother's unilateral action in changing schools, the court prioritized the children's best interests, particularly regarding school stability.

The court granted the father alternate weekend parenting time with all four children and one evening per week with two children, but denied supervised access and ordered the children to remain in their new school for the current term, with the issue to be revisited.

The respondent brought a motion to terminate her child support obligations for two adult children, arguing they were no longer enrolled in educational programs and thus not "children of the marriage" under the Divorce Act.

The applicant opposed, asserting the children remained dependants and sought to stay the motion due to arrears.

The court denied the stay, finding the respondent's arrears did not warrant it.

The court determined that while a "gap year" is permissible, the children's extended periods out of school, by choice, meant they no longer qualified for support.

Child support for one child was terminated effective December 2019 and for the other effective June 2020, resulting in a significant overpayment to the respondent.

The decision was made without prejudice to future applications if the children re-enroll.

The moving party brought a motion for leave to appeal a costs order made by a Master.

The Divisional Court reviewed the matter in writing.

The motion for leave to appeal was dismissed.

The court awarded costs fixed at $5,000 to the responding parties.

The moving party sought leave to appeal an order requiring him to disclose certain information.

He had also brought a separate motion before the motion judge to correct a mistake in the same order pursuant to rule 25(19)(b) of the Family Law Rules.

The Divisional Court held that the leave to appeal motion was premature and adjourned it until the motion to correct the order was decided and finalized.

The moving parties brought a motion for leave to appeal from an order of a Master.

The Divisional Court dismissed the motion for leave to appeal without costs.

The moving party brought a motion for leave to appeal from the order of Henderson J. dated November 12, 2020.

The Divisional Court dismissed the motion for leave to appeal.

As no costs were requested, no costs were ordered.

The moving parties brought a motion for leave to appeal from the order of McCarthy J. dated November 12, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party in the fixed amount of $5,000.

The defendant, Mercedes-Benz (Thornhill), brought a motion seeking to set aside a costs order obtained by the plaintiff without proper notice, to dismiss the plaintiff's action for delay, and to establish a litigation timetable.

The plaintiff's counsel failed to appear at the hearing despite requesting an oral argument.

The court found that the plaintiff's counsel engaged in "sharp practice" by obtaining the costs order without proper notice and by misrepresenting the defendant's position.

The court set aside the costs order, imposed a detailed timetable for the action, and ordered the plaintiff's counsel to personally pay costs of $3,500 to the defendant due to his inappropriate conduct and failure to appear.

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.