Ross H. Thomson

The appellant, Linda May Leith, brought a motion for an extension of time to file a notice of appeal from a trial judgment concerning an equalization payment under the Family Law Act.

The respondent, Jason William Craig Leith, sought the sale of the testator’s assets as ordered by the trial judge, which Ms. Leith opposed, seeking a stay of sale.

The court granted the extension of time, finding a one-day delay was inadvertent and the appeal raised arguable issues with no prejudice.

The court also granted a stay of the sale of remaining estate assets, finding a serious issue regarding the valuation date for the equalization payment, irreparable harm to the appellant if forced to leave her home, and the balance of convenience favoring the appellant.

Costs were awarded to the appellant.

The applicant surviving spouse elected to receive an equalization payment from her deceased husband's estate rather than taking under his will.

She brought a motion seeking to apply her equalization payment towards the purchase of the matrimonial home, which was owned by the estate and specifically bequeathed to one of the deceased's sons.

The court dismissed the motion, finding that a vesting order was not appropriate as there was no concern the estate would fail to pay the equalization amount once its properties were sold.

The court ordered all estate properties to be sold to determine the exact equalization payment, with the remaining net proceeds to be divided among the children on a prorated basis according to the sale prices of their specifically bequeathed properties.

Following the death of the applicant in a family law proceeding, the Estate sought to continue the application for equalization and compel the respondent to produce expert reports valuing her corporate assets.

The respondent moved for security for costs, arguing the Estate was insolvent and the litigation was primarily driven by the Estate's counsel to recover unpaid fees.

The court ordered the Estate to post $5,000 in security for costs, finding that the Estate resided outside Ontario and had no assets in the province.

The court also ordered the respondent to produce expert reports to substantiate the corporate values claimed in her net family property statement.

The Applicants brought a motion to compel the Respondent to comply with a previous order regarding the removal of obstructions from a right-of-way over the Respondent's property.

The court found that the Respondent had largely complied with the prior order, particularly concerning the shore well, based on a concession from the Applicants' counsel.

The court determined that other alleged obstructions (cedar trees, hostas, boulder, encroaching trees) were maintenance issues not proven to have been placed by the Respondent, and thus the Applicants were responsible for their removal at their own expense.

The motion was largely dismissed, with the Applicants only gaining permission to clear certain items at their own cost.

The applicant brought a motion to change a 2014 child support order, seeking retroactive and ongoing child support.

The respondent argued he had the child 40% of the time and that his income should be reduced by travel expenses to work.

The court found the respondent did not meet the 40% threshold and that commuting to a single work location did not qualify as a deductible travel expense.

Applying the D.B.S. factors, the court ordered retroactive child support from January 1, 2015, finding the respondent engaged in blameworthy conduct by failing to disclose significant income increases.

The applicants sought a determination of their rights regarding a 20-foot easement over the respondent's property for access to Chesley Lake.

The respondent disputed the scope of the easement and the right of some applicants to use it.

The court found that all applicants had a valid right-of-way, including a prescriptive easement for the Steckle Applicants.

The scope of the easement was determined to include both vehicular and pedestrian traffic, as well as the right to build and maintain a dock.

The respondent was ordered to remove obstructions she placed on the right-of-way but was not obligated to maintain it.

Third Line Homes Inc., a custom home builder, brought a motion for summary judgment against Patricia Grant for outstanding payments on a home construction agreement.

Grant defended on the basis of incomplete work, deficiencies including moisture and mould in the basement, and argued that the dispute should be subject to arbitration under the Ontario New Homes Warranties Plan Act (ONHWPA).

The court dismissed the motion for summary judgment, finding that Grant had not properly brought a motion to stay the action for arbitration, but also that there were genuine issues requiring a trial, particularly regarding the completion of the house, the alleged deficiencies, and the need for expert evidence on moisture and mould.

The applicant brought a motion to annul the respondent's bankruptcy and set aside the conveyance of a vacant property.

The respondent had made an assignment into bankruptcy amidst ongoing family law litigation concerning equalization and financial disclosure.

The Licensed Insolvency Trustee, represented by counsel, opposed the motion, arguing the respondent met the definition of an insolvent person and raising a preliminary jurisdictional issue.

The court affirmed its jurisdiction to hear bankruptcy matters, finding that all Superior Court judges have jurisdiction under the Bankruptcy and Insolvency Act.

However, the motion to annul the bankruptcy was dismissed without prejudice because the applicant failed to provide proper notice to all creditors, a critical procedural requirement.

The plaintiff claimed adverse possession of a disputed area of land.

The court analyzed the three requirements for adverse possession: actual possession, intention to exclude the owner (animus possidendi), and the true owner being out of possession.

The court found that the plaintiff's predecessor in title, Mr. Malfara, did not meet these requirements as he did not actually use the land and had no intention to exclude the true owner.

Consequently, the plaintiff's claim for adverse possession was dismissed.

The defendants' counterclaim for trespass was granted, awarding $500 in damages, and a permanent injunction was issued against the plaintiff.

Costs were awarded to the defendants.

The appellant father appealed a trial judge's decision permitting the respondent mother to relocate with their three children from Lion's Head, Ontario to a location within Bruce/Grey counties closer to her employment.

The father argued the trial judge misapprehended evidence, failed to give sufficient weight to the Views of the Child Report, and made a decision contrary to the children's best interests.

The Court of Appeal upheld the trial judge's decision, finding no palpable and overriding error and affirming that custody and mobility decisions are afforded great deference on appeal.

The applicant, Julie Ellen Madill, brought a motion for temporary spousal support, life insurance, and security for support, along with costs.

The respondent, Randall Scott Madill, brought a cross-motion for disclosure and accountings.

The court found the respondent's reported income unreliable due to personal expenses being paid through his business, Madill Construction, and imputed an income of $125,000 for support purposes.

The court awarded the applicant temporary spousal support at the high end of the Spousal Support Advisory Guidelines and fixed costs.

The respondent's motion for disclosure was adjourned.

Following a trial where the applicant was largely successful in obtaining child support, the parties made written submissions on costs.

The applicant sought $20,000, while the respondent suggested $10,000.

The court found the applicant was more reasonable in settlement efforts and at trial, but reduced the requested amount because some issues were resolved on consent.

The respondent was ordered to pay $15,000 in costs, enforceable as child support.

The applicant mother brought a motion to change a 2015 final order regarding child support and section 7 expenses for the parties' three children.

The mother sought to remove a travel credit previously granted to the respondent father and to fix his income at $65,123.00, while the father argued his income had decreased to $50,000.00.

The court rejected the father's evidence of decreased income, finding his employment income was not indicative of his actual gross income.

The court ordered the father to pay $1266.00 per month in base child support, $239.00 per month for section 7 expenses, and fixed arrears at $7714.00 for base support and $7000.00 for section 7 expenses.

The plaintiff builder sued the defendants for unpaid amounts related to the construction of their home, including authorized changes and extras.

The defendants disputed the costs, alleged deficiencies, and argued the contract was illegal due to the builder's non-registration with Tarion.

The court found the plaintiff proved its claim for the changes and extras, concluding that the defendants received a good deal.

The court rejected the argument that the contract was void due to Tarion non-registration, noting the parties' equal sophistication and deliberate choice to proceed outside the legislation, and affirmed that the claim would succeed on a quantum meruit basis regardless.

Judgment was granted for the plaintiff for a principal amount of $70,065.82, plus prejudgment and post-judgment interest at the Courts of Justice Act rate, denying the plaintiff's claimed 2% per month interest.

The plaintiff landlord brought an action for breach of contract after the defendant tenant vacated commercial premises three weeks after moving in and refused to pay rent.

The tenant argued there was no binding lease agreement, only an agreement to agree, or alternatively that the landlord committed a fundamental breach due to zoning issues and incomplete renovations.

The court found that the signed Offer to Lease contained all essential elements and constituted a binding agreement.

The court rejected the fundamental breach arguments, noting the tenant's complaints were inconsistent, mostly resolved, or not the landlord's responsibility under the 'as is' clause.

The landlord was awarded damages for lost rent, less fit-up costs for new tenants, with interest at 12% per annum compounded monthly.

In a family law trial concerning parenting time, the court considered a voir dire on the admissibility of hearsay statements allegedly made by the parties’ children to a counsellor.

The responding party sought to admit the statements for the truth of their contents.

Applying the necessity and reliability framework from R. v. Khelawon, the court found that statements from the two older children were not necessary because they were capable of testifying and there was no evidence that doing so would harm them.

Those statements were therefore inadmissible for the truth of their contents but admissible to show that the statements were made.

Statements from the youngest child were admitted for their truth because the child’s young age established necessity and the counsellor’s evidence satisfied threshold reliability.

A father sought expanded parenting time with three children following separation and divorce.

The mother sought continuation of the existing access schedule, which provided limited unsupervised daytime access within a restricted geographic area.

After reviewing evidence from family members, a counselor, and other witnesses, the court applied the best interests test under the Divorce Act and the Children’s Law Reform Act.

While concerns existed regarding the children’s emotional responses to access, the court found that the father had demonstrated improving relationships with the children and that a modest expansion of access would be beneficial.

The court ordered incremental increases including occasional overnight access at the paternal grandparents’ residence and additional holiday contact, while maintaining safeguards and scheduling a review within six months.

During a family law trial, the court conducted a voir dire to determine the admissibility of hearsay statements allegedly made by a child to his mother accusing the applicant of hitting him.

The respondent sought to admit the statements for their truth despite the child not being called as a witness.

The court held that the respondent failed to establish the necessity requirement under the principled exception to the hearsay rule, as the child was available and capable of testifying.

As necessity was not established, the court declined to assess reliability.

The hearsay statements were ruled inadmissible for the truth of their contents but admissible only to show that the statements were made.

The court determined costs arising from a motion relating to the sale of jointly owned property after one party filed a consumer proposal under the Bankruptcy and Insolvency Act.

The moving party had sought relief including lifting the statutory stay and authorizing the listing and sale of the property.

After a prior order lifted the stay and allowed the property to be listed for sale, the motion was ultimately dismissed as moot once the mortgagee took possession.

The court held that the motion became duplicative following the earlier order and should not have continued.

In the circumstances, the court declined to award costs to either party.