Roma S. Mungol

The appellant wife appealed an order setting aside a separation agreement under s. 56(4)(b) of the Family Law Act.

The hearing judge had set aside the agreement based on a theory he raised himself, finding the wife engaged in trickery by altering the agreement without the husband's knowledge.

The Court of Appeal allowed the appeal, holding that the hearing judge's finding of trickery was procedurally unfair as it was never pleaded or put to the wife in cross-examination.

Absent this finding, there was no basis to conclude the sophisticated husband, who chose not to obtain independent legal advice, failed to understand the nature or consequences of the agreement.

The offender, a 21-year-old student Early Childcare Assistant, was found guilty of assaulting a 17-month-old child in her care by pulling a chair out from under the child, causing a cut lip that required stitches.

The Crown sought a suspended sentence and probation, while the defence sought a conditional discharge.

The court weighed the aggravating factors of breach of trust and vulnerability of the victim against the offender's youth, lack of criminal record, significant background of trauma, and strong rehabilitative efforts.

The court granted a conditional discharge with 12 months of probation, finding it in the offender's best interest and not contrary to the public interest.

This decision concerns the conviction of Tiena Lewin, an Early Childhood Educator student, for assaulting a 17-month-old child by pulling the chair the child was sitting on with sufficient force to cause injury.

The court carefully analyzed the credibility and reliability of witnesses, particularly contrasting the testimony of a daycare assistant and the accused.

The judge applied the W.(D.) framework for assessing the accused’s testimony and found the Crown proved all elements of assault beyond a reasonable doubt, rejecting the accused’s version of events as not raising reasonable doubt.

The decision also addresses the application of the de minimis principle in criminal law, concluding the force used was neither trivial nor harmless.

This is a costs endorsement following a one-day trial where the father's motion to change child support was partially successful.

The mother, Dollen Kerr, sought full recovery costs of $14,435.75.

The court applied principles of reasonableness and proportionality, considering the parties' conduct, offers to settle, and the dominant issues at trial.

The mother was deemed the more successful party overall, particularly on the arrears issue, but her costs claim was high, and she failed to make a formal offer.

The father was found unreasonable for failing to pay child support for many years.

The court awarded the mother $5,000 in costs, inclusive of fees, disbursements, and HST, payable at $50 per month, with an acceleration clause for late payments.

The respondent father brought a motion to change child support terms and rescind arrears from a 2008 order, citing a material change in circumstances due to a back injury and inability to earn the imputed income.

The applicant mother opposed, arguing the father had consistently avoided his support obligations.

The court found a material change in circumstances from June 10, 2021 (date of formal notice), but imputed an annual income of $18,000 to the father due to his intentional underemployment and failure to follow medical advice or seek retraining.

The court dismissed the father's request to rescind arrears, citing his blameworthy conduct and the stringent test for rescission, but allowed him to pay arrears at a reduced monthly rate.

The applicant moved for the equal distribution of the net sale proceeds of a jointly owned investment condominium following the parties' separation.

The self-represented respondent objected, claiming a holdback for management fees she incurred while managing the property.

The court noted that while a joint tenant cannot typically charge management fees, the respondent's claim could be framed in equity as unjust enrichment or constructive trust.

Applying the principles for self-represented litigants, the court dismissed the applicant's motion without prejudice and granted the respondent leave to amend her pleadings to properly assert her equitable claims.

This endorsement addresses a costs application following a trial concerning parenting time.

The mother, who was largely successful at trial, sought costs on a full or partial recovery basis.

The father, self-represented, opposed any costs.

The court reviewed the principles for awarding costs, including the criteria for full recovery (unreasonable conduct, bad faith, or beating an offer to settle) as outlined in Mattina v. Mattina.

The court found that the mother did not beat her offer to settle, and the father's conduct, while not leading to settlement, did not meet the high bar for bad faith or unreasonable conduct warranting full recovery, especially given his self-represented status and efforts to resolve the matter.

Applying the factors under Family Law Rule 24(12), the court determined a partial recovery award was appropriate, considering the case's importance and lack of legal or factual complexity.

The mother was awarded $4,300 in costs.

The applicants challenged the validity of a will and an acknowledgment of trust purportedly executed by the deceased, alleging the signatures were forged.

The respondents, the deceased's parents and brothers, sought to uphold the documents and argued the applicant wife was separated from the deceased and not a dependant spouse.

Relying on expert handwriting evidence, the court found the will and trust documents were forged and therefore invalid.

The court also found that the applicant wife and the deceased were in a spousal relationship at the time of his death, entitling her to be appointed Estate Trustee Without a Will and declaring her and her children dependants of the estate.

The appellants appealed a Landlord and Tenant Board review order requiring them to pay the respondent tenant $9,439.13 for a bad faith eviction.

The appellants argued the Board failed to articulate the legal test for bad faith and lacked an evidentiary record.

The Divisional Court dismissed the appeal, finding that the Board's conclusion of bad faith was a factual finding or a finding of mixed fact and law, which is not reviewable under section 210 of the Residential Tenancies Act, as appeals are restricted to questions of law.

The applicant mother brought a motion for child support and section 7 special expenses.

The respondent father, a taxi driver, claimed his income was $12,726.00 and opposed the special expenses.

The court found the father was intentionally under-employed and imputed his income at $36,960.00.

The court ordered the father to pay his proportionate share of swimming lessons, religious studies, and child care for the youngest child only.

The court also terminated the restraining order against the father, finding no meaningful evidentiary foundation to continue it.

The applicant mother sought child support and section 7 expense contributions from the respondent father for three children.

The father acknowledged his legal responsibility but disputed the income imputation and special expenses claimed.

The court found the father was intentionally under-employed and imputed annual income of $36,960.00, resulting in monthly child support of $717.00.

The court awarded contributions toward swimming lessons, religious studies, and child care for the youngest child only.

The restraining order against the father was terminated.