Ruth E. Mesbur

The applicant father brought a motion to change a final custody order, seeking sole custody of the two children.

His grounds included the respondent mother's alleged inability to ensure timely school attendance, marijuana use, and frequent changes in residence and schools.

The mother opposed the custody change and sought increased retroactive and prospective child support.

The court dismissed the father's motion, finding no material change in circumstances warranting a custody change.

However, the court granted the mother's request for increased child support, fixing retroactive arrears and setting a new prospective amount.

The court also ordered the children to attend a "Families in Transition" program and mandated parental adherence to school recommendations for the children's educational and therapeutic needs, particularly for Maelyn's ADHD diagnosis and Individual Education Plan.

This corrigendum addresses an arithmetical error in a prior decision concerning child support calculations.

The respondent identified an incorrect calculation for 2015, leading to an increase in the amount owed by the applicant.

The court confirmed its jurisdiction to correct such a slip or omission under Rule 59.06(1) of the Rules of Civil Procedure, deeming a formal motion or appeal unnecessary for this type of error.

The original decision was amended accordingly, with all other aspects confirmed.

The applicant mother moved to strike the respondent father's motion to change a final consent order, citing significant breaches of prior orders (especially costs) and arguing the motion was frivolous, vexatious, and an abuse of process.

She also sought to have the father declared a vexatious litigant and required security for costs.

The court found the father was in breach of prior costs orders and had delayed compliance.

While not declaring the father a vexatious litigant or the proceeding an abuse of process at this stage, the court ordered the father to pay outstanding interest on trial costs and post $70,000 as security for the mother's costs.

The father's motion to change was stayed pending compliance with these conditions, and further motions were restricted without leave.

This trial decision addressed financial issues following a marital separation, with parenting matters previously resolved.

The Applicant's claim for equalization of net family property was denied due to the expiration of the limitation period and the Respondent's failure to properly seek leave to amend her pleadings.

The court imputed income to the Respondent and determined the Applicant's income for support purposes.

It confirmed a shared parenting arrangement existed since separation, applying the Child Support Guidelines.

The decision ordered retroactive child support and a lump sum spousal support payment, emphasizing a clean break between the parties.

This endorsement addresses the costs arising from a dismissed motion to stay an action.

The defendants, as moving parties, sought to stay the action, but their motion was dismissed with costs to the plaintiff.

The parties failed to agree on the scale and quantum of costs.

The court found the plaintiff's pre-motion offer to settle the motion was reasonable and should have been accepted, while the defendants' post-motion offer was not severable and included extraneous terms.

Consequently, the court awarded the plaintiff costs fixed at $17,800, calculated on a blended partial and substantial indemnity basis.

The defendants moved to stay an action brought by the plaintiff in Ontario, arguing that Ontario lacked jurisdiction simpliciter or was not the convenient forum, proposing Andorra as the appropriate venue.

The dispute concerned entitlement to €400,000 held in escrow under an Escrow Agreement, which contained a non-exclusive choice of law and forum selection clause in favour of Ontario.

The court found the essential nature of the lawsuit was rooted in the Escrow Agreement, which dictated Ontario law and forum.

The court dismissed the defendants' motion, finding no exceptional circumstances to disregard the forum selection clause and that Ontario was the more convenient forum.

The plaintiff sought summary judgment for a debt of approximately €511,000, claiming it was assigned to him by a German bank.

The defendants admitted the debt but disputed the validity of the assignment under German law.

The court, relying on uncontradicted expert evidence regarding German law, found that the plaintiff failed to provide sufficient evidence to prove a valid assignment, including bilateral execution, clear identification of the assigned claim, proof of signatory authority, and proper notice to the debtors.

The court determined there was a genuine issue requiring a trial and dismissed the motion for summary judgment, ordering the plaintiff to pay the defendants' costs.

The plaintiff moved to amend its statement of claim to add two corporate defendants and assert a fraudulent conveyance claim relating to rights under a letter of intent associated with a hotel development project.

The defendant opposed the amendment on the basis of res judicata, issue estoppel, limitation periods, and abuse of process, and also sought security for costs against the plaintiff corporation.

The court held that the proposed claim was not finally adjudicated in earlier summary judgment proceedings and that the new pleading asserted a different theory based on joint venture ownership and fraudulent conveyance.

The court also rejected the limitation defence, finding the amendment motion was effectively commenced within the limitation period.

The defendant failed to demonstrate that the plaintiff corporation was impecunious or that the action was frivolous and vexatious.

A commercial landlord brought an application seeking interpretation of a lease and additional rent for a basement area occupied by the tenant’s assignee following insolvency proceedings.

The court examined the lease language, surrounding negotiations, and principles of contractual interpretation under Sattva.

It held that the basement was not part of the leased premises, but the lease rent was calculated on a per‑square‑foot basis.

The tenant’s assignee was therefore liable to pay rent for the basement based on the lease rate for its square footage from the date of assignment.

The landlord’s separate claim for rectification of the lease to reflect greater square footage of the upper floors was dismissed because the landlord had expressly waived the contractual right to remeasure the premises.

In an estate dispute between siblings, the estate trustee moved to dismiss an application requiring an accounting of estate assets on the basis of delay.

The delay resulted largely from the applicant’s former lawyer, who had misled the client and failed to advance the proceeding while suffering from severe personal and mental health issues.

The court held that the delay was adequately explained, the applicant intended to pursue the claim, and the moving party had also failed to take steps to advance the matter or his own related motion regarding a purported will.

The court further found no non-compensable prejudice resulting from the delay.

Exercising its discretion, the court declined to dismiss the application.

In a contested divorce trial, the court determined parenting arrangements, equalization of net family property, and spousal and child support.

The parties shared joint custody of their child on a week-about schedule but disputed travel protocols, passport control, income for support purposes, and the valuation of several assets.

The respondent claimed large family loans evidenced by promissory notes to reduce his net family property; the court rejected the claim, finding the evidence unreliable and concluding the alleged debts were not proven.

The court determined the respondent’s income for support purposes exceeded his declared income and ordered ongoing spousal support and set-off child support.

The respondent was also ordered to pay a substantial equalization payment and maintain life insurance securing his support obligations.

Following a lengthy marriage between two medical professionals, the parties proceeded to trial to resolve financial issues including equalization of net family property, spousal support, child support, and section 7 expenses.

The court determined that equalization under the Family Law Act was appropriate and rejected the applicant’s claim for an unequal division under s. 5(6), finding that equalization would not be unconscionable.

The court calculated an equalization payment and addressed numerous disputed property valuation issues, including notional disposition costs and treatment of premarital assets.

The court also found the applicant entitled to spousal support on both compensatory and needs-based grounds due to reduced earning capacity after assuming greater childcare responsibilities during the marriage.

Orders were made for ongoing spousal support, retroactive support adjustments, set‑off child support, allocation of section 7 expenses, life insurance to secure support obligations, and timelines for vacating the matrimonial home.

The applicant brought a motion to set aside a prior costs order requiring payment of approximately $32,974.57 following earlier child support litigation.

The applicant alleged that the respondent had a special fee arrangement with his law firm which was not disclosed to the court and would have affected the costs determination.

The court applied the stringent test for setting aside an order based on newly discovered facts, as articulated in West v. West.

The court found the evidence did not establish the existence of a special fee arrangement but rather a payment mechanism involving internal fee credits used to satisfy legal accounts.

As the arrangement did not reduce or forgive the respondent’s fees and did not exist when the costs order was made, the applicant failed to demonstrate that the original order would have been different or that a miscarriage of justice would occur.

The applicant father brought a motion for temporary access to the parties’ four‑year‑old child pending completion of a s. 30 parenting assessment.

The respondent mother sought supervised access relying in part on a pediatrician’s letter suggesting the child may have experienced trauma during prior visits.

The court found the purported expert opinion unreliable because it was based largely on the mother’s subjective account and incomplete information without input from the father.

Finding no credible evidence of safety concerns and noting previous orders granting unsupervised access, the court ordered a structured temporary access schedule including weekday visits and gradually expanding overnight access, while directing that questioning on affidavits be completed.

The applicant moved for judgment on a demand promissory note and related security, seeking payment of a liquidated debt and dismissal of any set‑off claims raised by the respondent.

The respondent asserted a contractual right of set‑off arising from a services agreement and also brought motions seeking security for a Mareva damages undertaking and security for costs.

The court held that the existence of significant factual disputes, including whether contractual set‑off applied and limitation issues, made the matter unsuitable for determination on motion.

The court also found insufficient evidence to justify security for the damages undertaking or security for costs.

Both motions were dismissed and the issues were directed to proceed to trial.

Multiple defendants moved under Rules 21 and 25 of the Rules of Civil Procedure to strike a lengthy statement of claim alleging fraud, conspiracy, breach of fiduciary duty, breach of trust, and unjust enrichment arising from unpaid German loan obligations allegedly concealed through asset transfers and trusts.

The court held that the pleading failed to set out material facts supporting the elements of the alleged causes of action and largely consisted of vague allegations and legal conclusions.

Several claims were struck as disclosing no reasonable cause of action, though the plaintiff was granted leave to amend.

The court emphasized the requirement to plead material facts and provide full particulars for allegations of fraud and related claims.

The plaintiff was also ordered to properly produce loan documents referenced in the pleadings.

A subcontractor obtained judgment against a corporate officer for breach of trust under the Construction Lien Act after the officer’s defence was struck for failing to provide ordered financial disclosure.

Unknown to the creditor, the officer had earlier assigned himself into bankruptcy and later sought to have the creditor’s writ withdrawn following his discharge.

The creditor moved for leave nunc pro tunc under s. 69.4 of the Bankruptcy and Insolvency Act to continue the action notwithstanding the bankruptcy, arguing the debt arose from breach of fiduciary trust and would survive discharge under s. 178(1)(d).

The court held that the creditor’s failure to obtain prior leave was merely an irregularity caused by lack of notice of the bankruptcy.

Leave was granted nunc pro tunc and the judgment debt was declared to survive the discharge.

In a bankruptcy proceeding on the Commercial List, counsel alerted the court that its earlier endorsement had not addressed a specific tab in the Brief of Privileged Documents.

The court considered whether the materials contained in that tab were privileged.

Because the tab excerpted material from a settlement conference brief previously held to be privileged, the court confirmed that the tab itself was also privileged.

The endorsement was corrected by way of corrigendum to reflect that determination.

A motion arose in bankruptcy litigation concerning whether portions of a trustee’s report disclosed privileged communications from a prior joint retainer between the trustee and a creditor.

The creditor argued the materials were protected by solicitor‑client privilege, settlement privilege, and common interest privilege and sought to prevent their disclosure.

The court held that, in a dispute between former joint clients over removal of counsel, solicitor‑client privilege does not apply between the clients themselves, allowing the full record to be considered on that motion.

However, for the trustee’s broader motion for advice and directions involving third parties, several documents remained privileged because privilege jointly held by co‑clients cannot be unilaterally waived.

The court therefore ordered certain materials sealed for the removal motion but redacted from the public record for other proceedings.

Following an earlier endorsement in a commercial dispute, the court issued a corrigendum to correct two matters raised by counsel.

First, the formal endorsement had omitted the judge’s decision striking a specific paragraph of the applicants’ amended amended application, which had previously been recorded only in a handwritten endorsement.

Second, the reasons incorrectly stated that a newly constituted board had approved the sale of a 10% share in a corporation to a respondent, when in fact the scheduled board meeting had not proceeded because the application had already been commenced.

The court clarified both issues and amended the reasons accordingly.