Robert J. Nightingale

On a motion to change, the applicant sought to set aside or vary spousal support terms in a self-drafted separation agreement filed for enforcement under the Family Law Act.

The court held that the support provisions produced unconscionable circumstances, the payor was in breach when the application was commenced, and the recipient remained a disabled and financially dependent former common-law spouse living in poverty.

Applying the statutory framework and consulting the Spousal Support Advisory Guidelines, the court found the agreed duration was clearly inadequate and ordered ongoing support of $2,000 per month for four additional years together with continued extended health, dental, and life insurance benefits.

The order was made prospectively from May 1, 2015.

The appellant appealed a conviction and sentence for assault arising from an altercation with his spouse during a separation and custody dispute.

The appeal court held that the trial judge failed to adequately explain the rejection of the appellant's evidence, particularly by relying on unspecified 'other serious improbabilities', and appeared to subject the appellant's evidence to a different level of scrutiny than the complainant's evidence.

Applying appellate principles governing unreasonable verdicts, errors of law, and credibility analysis, the court concluded that the conviction and sentence had to be set aside.

A new trial was ordered, and the ineffective assistance ground was not addressed.

In this family law costs decision following a custody and child support trial, the successful responding party sought substantial indemnity costs based on an offer to settle.

The court held that the offer did not satisfy Rule 18(14) of the Family Law Rules because the trial result was not as favourable as or more favourable than the offer.

However, the responding party was entitled to partial indemnity costs because she succeeded on the major issues, including residence of the children and guideline child support.

The court fixed fair and reasonable costs after considering the reasonableness of counsel's rate and time, the importance of the issues, and the unsuccessful party's ability to pay.

A father sought to vary a separation agreement by obtaining equal shared parenting and termination of child support.

The court found the existing joint custody arrangement, with the children residing primarily with the mother during the school week and spending alternate weekends and mid‑week time with the father, was functioning well and in the children’s best interests.

The father provided no expert or other persuasive evidence demonstrating that a shift to equal time would benefit the children, and his proposed schedules were found to prioritize his shiftwork rather than the children’s stability.

The court also determined the agreed child support amount significantly undercut the Child Support Guidelines and that the father failed to establish any special provision justifying the deviation.

Guideline child support was therefore ordered retroactive to the date of the responding claim.

A consultant sued a corporation for unpaid fees under a month‑to‑month consulting services agreement providing monthly compensation plus expenses.

The defendant argued the contract was frustrated and unenforceable because the consultant could not legally work in Canada without immigration authorization and had failed to secure investment funding.

The court rejected these defences, finding the primary purpose of the contract was to obtain American venture‑capital investment and that the consultant had substantially performed her services from the United States with the defendant’s knowledge and encouragement.

The defendant had waived any requirement that work be performed in Canada and had continued to praise the consultant’s work while failing to pay agreed fees.

Judgment was granted for the outstanding consulting fees with pre‑judgment interest.

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.

The plaintiffs, private lenders, advanced mortgage funds to the defendants for the purchase of a farm and equipment, secured by a general security agreement (GSA) on the equipment.

The defendant who sold the farm and equipment later removed and sold some of the equipment after the purchasers defaulted and the plaintiffs took possession of the farm.

The plaintiffs sued the seller for conversion and the purchaser for fraudulent misrepresentation.

The court found that property in the equipment passed to the purchaser on closing, giving the plaintiffs a valid GSA.

The seller was found liable for conversion and ordered to pay $35,533 in damages.

The claims against the purchaser and the seller's counterclaim and crossclaim were dismissed.

Following dismissal of the plaintiff’s action at a contested status hearing under Rule 48.14 of the Rules of Civil Procedure, the court determined the appropriate costs award.

The defendants sought partial indemnity costs for preparation and attendance related to the dismissal motion.

The court held that some claimed time, including work connected to a prior interlocutory motion and certain post‑hearing submissions, should not be included.

Applying the principle that costs must be fair and reasonable rather than a precise calculation of docketed hours, the court fixed a global costs award.

The plaintiff was ordered to pay $10,500 in fees plus HST and approved disbursements.

At a contested status hearing under Rule 48.14 of the Rules of Civil Procedure, the defendants sought dismissal of the plaintiff’s negligence action for delay.

The court applied the two‑part conjunctive test confirmed by the Court of Appeal requiring the plaintiff to show a reasonable explanation for the delay and absence of non‑compensable prejudice to the defendant.

Although the defendants conceded they would not suffer prejudice if the action proceeded, the plaintiff failed to provide any satisfactory explanation for extensive procedural delays, including failure to properly plead the claim, repeated non‑compliance with court orders, and lengthy unexplained gaps in advancing the litigation.

The court emphasized that plaintiffs bear primary responsibility for moving actions forward and that persistent disregard of procedural timelines undermines the administration of justice.

As the plaintiff did not meet the required test, the action was dismissed.

The appellant lessor appealed a Small Claims Court decision that reduced damages arising from a defaulted automobile lease based on alleged breaches of the Consumer Protection Act.

The appellate court held that the deputy judge made palpable and overriding errors in fact and law by finding undisclosed charges, misinterpreting lease calculations, and concluding that the lessor engaged in unfair practices without evidentiary support.

The court found the lease’s liquidated damages clause enforceable and determined the lessor was entitled to the arrears and accelerated future lease payments, subject only to a credit for interest improperly applied to a gas card charge.

The appellate court set aside the reduced damages award and substituted judgment reflecting the contractual damages under the lease.

The appellant appealed a Small Claims Court decision dismissing its action and motion for assessment of damages after the respondents were noted in default on a vehicle lease.

The Deputy Judge had dismissed the claim based on alleged violations of the Consumer Protection Act despite the deemed admission of liability resulting from the respondents’ default.

The Superior Court held that the Deputy Judge erred in law by disregarding the deemed admission of liability and by making speculative findings about alleged deceptive practices without evidence.

The court also found procedural unfairness because the appellant was given no notice that the claim might be dismissed rather than having deficiencies in the affidavit addressed.

The decision was set aside and the matter remitted to another Small Claims Court judge for a new assessment of damages upon the filing of a more detailed affidavit.

The moving parties sought judgment enforcing a settlement agreement under Rule 49.09 of the Rules of Civil Procedure and declaratory relief under s. 97 of the Courts of Justice Act.

The dispute concerned the interpretation of settlement terms requiring an accounting of profits, dividends, management fees, and payments derived from a medical centre business, and whether certain legal expenses and management fees constituted benefits received or derived by the responding parties.

The court preferred the evidence of the moving parties’ expert accountant, finding that payments for legal fees and management services constituted benefits derived by the responding parties rather than excluded loan repayments.

The accounting determined that additional funds were owed under the settlement and that the responding parties were required to transfer shares in the corporation.

Judgment was granted enforcing the settlement terms and ordering payment of the additional sums and transfer of shares.

A franchisee brought an action against the franchisor alleging failure to disclose material information under the Arthur Wishart Act in connection with a renewal of a franchise agreement and the franchisor’s requirement that the franchisee undertake costly renovations to convert its store to a sit‑down restaurant.

The franchisee claimed the renovations constituted a material change requiring disclosure and alleged breaches of good faith, damages for loss of the business, and lost profits.

The court held that the renovation program had been disclosed and known to the franchisee since before the original franchise agreement and therefore did not constitute a material change at renewal within the meaning of the Arthur Wishart Act.

The court further found the franchisor acted in good faith and made multiple reasonable accommodations and offers to the franchisee.

In any event, the franchisee failed to mitigate its damages by refusing to return to operate the store for the remaining term of the agreement.

The action was dismissed.

The defendant appealed a Small Claims Court judgment awarding damages to a purchaser of a used vehicle that had been misrepresented as having all‑wheel drive.

The appellant argued that the trial judge erred in failing to properly consider mitigation and in calculating damages.

The court held that the respondent had taken reasonable steps to mitigate her losses while pursuing rescission through OMVIC and later trading the vehicle in for another.

However, the trial judge erred in including the entire financing cost of the vehicle in the damages calculation.

The appeal was allowed in part and damages were recalculated to reflect the unused value of warranty costs, a deduction for use of the vehicle, and the trade‑in value received.

The defendants moved under Rule 19.08 of the Rules of Civil Procedure to set aside a default judgment and an earlier order striking their statement of defence in a property dispute involving alleged failure to disclose mould conditions in a residential basement.

The court considered the factors governing motions to set aside default judgments, including promptness of the motion, explanation for the default, and the existence of an arguable defence.

The court held that the motion had been brought without undue delay and that the defendants had an arguable defence based on sworn discovery evidence denying knowledge of mould or water problems.

Balancing prejudice to both parties and the interests of justice, the court concluded that the matter should proceed to trial on strict conditions including payment of the assessed damages and costs into court and payment of costs thrown away.

The default judgment and the order striking the defence were set aside subject to those terms.

The defendant insurer brought a motion for summary judgment to dismiss the plaintiff's action for statutory accident benefits, arguing it was statute-barred because the plaintiff failed to mediate her claim and failed to return settlement funds prior to commencing the action.

The plaintiff brought a cross-motion for partial summary judgment for ongoing income replacement benefits.

The court granted the defendant's motion, finding that the failure to mediate and return the settlement funds deprived the court of jurisdiction.

The plaintiff's cross-motion was dismissed on the merits due to contradictory evidence regarding her disability.

The plaintiff brought an action against the Hamilton Police Services Board (HPS) for damages arising from the seizure of his vehicles and car parts by the Ontario Provincial Police (OPP).

The plaintiff alleged that the HPS was vicariously liable as a 'partner' of the OPP because an HPS detective assisted in examining the seized vehicles.

The Superior Court of Justice dismissed the action, finding no evidence of a partnership or joint investigation between the two police forces.

The court concluded that the OPP had exclusive control over the seizure and disposition of the property, and the HPS detective acted solely as an examiner.

The respondent mother brought a motion for interim child and spousal support, alleging the applicant father was intentionally unemployed or underemployed and seeking to impute his income at $386,000.

The applicant claimed his businesses had failed and he was receiving Ontario Works.

The court found the applicant had earned at least $111,000 in 2012 and imputed his income at $125,000 on an interim basis, noting his intentional unemployment and significant unexplained deposits.

The court ordered the applicant to pay interim child support, outstanding tuition fees, and established the respondent's entitlement to interim spousal support.

The applicant father brought a motion for interim spousal support, and the respondent mother brought a cross-motion for interim child support.

The father claimed he was unable to work due to a workplace injury and was receiving social assistance.

However, WSIB records revealed he had received extensive retraining but refused to seek employment in those fields.

The court imputed an annual income of $21,320 to the father based on minimum wage.

Applying the Spousal Support Advisory Guidelines and Child Support Guidelines, the court ordered the father to pay $320 per month in child support and the mother to pay $320 per month in spousal support, offsetting the two amounts.

The mother was also ordered to make a one-time spousal support payment of $2,000 to the father.