Robert E. Charney

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 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 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 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.

The applicant husband brought a motion for the immediate sale of a jointly owned cottage and exclusive possession of another cottage pending its sale.

The respondent wife brought a cross-motion for interim spousal and child support, exclusive possession of the matrimonial home, and interim disbursements.

The court ordered the immediate sale of both cottages, finding no prejudice to Family Law Act claims, and granted the husband temporary exclusive possession of one cottage due to COVID-19 economic circumstances.

The court declined to order the sale of the matrimonial home pending a business valuation and ordered interim child support based on the husband's reported income rather than imputing income, given the uncertainties of the pandemic.

The respondent, M.C., moved to vary a consent order to establish a specific access schedule with his child, K., and sought joint custody.

The applicant, J.D., and her parents, P.D. and B.D., opposed, arguing for supervised access or termination, citing K.'s mental health issues and M.C.'s anger.

The court found no material change in circumstances to justify varying the original consent order based on K.'s health, as these issues largely predated the order.

The court rejected P.D. and B.D.'s interpretation of "reasonable access as agreed by the parties" as an "agreement to agree" which would render the consent order unenforceable.

Consequently, the court set aside the entire consent order, temporarily continued joint custody with J.D. and her parents, and established a specific, unsupervised parenting time schedule for M.C. An OCL assessment was ordered, and all parties were mandated to take parent training courses.

The respondent father brought a motion seeking to reinstate access with his daughter, modify the parenting schedule, obtain make-up access time, police enforcement, and reduce child support and section 7 expenses.

The primary issue of access reinstatement was resolved prior to the hearing as the applicant mother agreed to resume the existing parenting schedule.

The court found that the remaining issues, including make-up access, increased summer access, police enforcement, and financial adjustments, did not meet the test for urgency during the COVID-19 emergency period.

The motion was dismissed as not urgent, without prejudice to the respondent's right to renew it later.

The defendants, F.I. and E.M., applied for a mistrial after being found guilty of sexual assault by a jury.

The application was based on the jury selection process, which did not allow peremptory challenges, following new procedures implemented on September 19, 2019.

This was argued to be contrary to the Court of Appeal's decision in R. v. Chouhan, which held that the abolition of peremptory challenges should not apply retrospectively to cases where the accused had a vested right to a trial by judge and jury under prior legislation.

The court dismissed the application, noting that counsel had not objected to the new jury selection process at the time of selection.

The judge adopted reasoning from R. v. Azzi, emphasizing the public interest in finality, the impact on the complainant, and the fact that the Supreme Court of Canada had granted leave to appeal the Chouhan decision, militating against a post-verdict mistrial.

The court addressed costs following a successful summary judgment motion by the respondents, Stephen and William Elias, against the applicant, Emma Trefler, regarding the validity of a $950,000 mortgage.

Stephen Elias sought full or substantial indemnity costs for both the summary judgment motion and an earlier emergency motion.

William Elias sought substantial indemnity costs for the summary judgment motion.

The court found Stephen's offer to settle did not comply with Family Law Rule 18(14) due to demanding full indemnity costs as a condition of acceptance and lacking a true element of compromise, and William's offer was deficient for not specifying the scale of costs.

Crucially, the court exercised its discretion under Rule 24(4) of the Family Law Rules to deprive Stephen of costs due to his unreasonable and abusive behaviour, including "hurtful, abusive and hateful" anti-Semitic text messages to the applicant, which created a toxic environment and prevented settlement.

Despite William not exhibiting the same behaviour, the court found that due to the identity of interest with Stephen and the circumstances necessitating William's involvement (Stephen's prior agreement to provide proof of loan and William's inability to fully account for funds), ordering the applicant to pay William's costs would defeat the purpose of Rule 24(4).

Consequently, all parties were ordered to bear their own costs.

The respondent mother brought an urgent motion for exclusive possession of the matrimonial home and specific parenting orders during the COVID-19 pandemic.

The court found the motion for exclusive possession urgent but dismissed it, determining that the mother did not meet the onus to demonstrate that continued co-habitation was impractical or threatened the children's well-being.

The court considered the father's inability to find alternative accommodation and the mother's financial resources.

The court also dismissed the request for exclusive care of the children for 14 days due to a lack of admissible evidence regarding the father's non-compliance with COVID-19 protocols.

The decision emphasized that the pandemic alone is not a reason to suspend parental access and encouraged parents to provide child-focused time-sharing proposals.

The applicant insurer sought judicial review of a decision by the Director's Delegate, which allowed the insured's appeal from an arbitrator's denial of statutory accident benefits.

The Director's Delegate found that the arbitrator erred in law by failing to provide adequate reasons for denying income replacement and medical benefits.

Applying the Vavilov framework, the Divisional Court held that the standard of review was reasonableness.

The Court concluded that the Director's Delegate reasonably found the arbitrator's reasons inadequate, as they failed to address the principal evidence or explain the reasoning process.

The application for judicial review was dismissed.